Johnston v. Pittsburgh & Western Railroad

7 A. 184, 114 Pa. 443, 1886 Pa. LEXIS 456

• Court: Supreme Court of Pennsylvania
• Decided: November 15, 1886
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court,

This case can be disposed of in a very few words. The plaintiff was a brakeman in the employ of the defendant company, and whilst in such employ, without any negligence on his part, was injured by the colliding of his train with another train on the same road. The collision was admittedly the result of the neglect of the conductor and engineer of the train on which plaintiff was engaged, to stop at Wildwood station for orders. Instead of so waiting they started their train in plain violation of their duty and the orders of the company, and the collision was the result.

If this were all, it is obvious that the plaintiff would be prevented from recovering for the injuries which he received by reason of the familiar rule which relieves the employer from liability when an injury is the result of the negligence of a co-employee of the person injured. But the plaintiff alleges that the conductor was sick and unfit to have taken the train out, and that the engineer had been on continuous duty so many hours as also to be unfit for duty. There was evidence that the conductor was sick; that he had been on duty for an unusual length of time, and that he had asked permission to be relieved from this trip. But there was no evidence that the starting of his train without orders was the result of his sickness. Pie knew he had no right to leave Wildwood station without orders, and his disobedience of his duty in this respect is not sufficiently connected with his sickness.

It was shown to be as much the duty of the engineer to wait for orders as it was of the conductor. He states in his testimony that he was engaged about his engine and forgot all about the train which was approaching, and started without orders.

It must not be forgotten that the collision was the result solely of starting without orders. We have not the case before as of an engineer or conductor being sick or so worn out with continuous service as by reason thereof to be unable to property handle the train when in motion, and an accident resulting therefrom. In the case at bar the collision did not occur because either the conductor or engineer was in such a condition that he could not wait for orders to take the train out, or that he-did not know it was his duty to do so.

Judgment affirmed.