Nelson v. Oil City Street Railway Co.

56 A. 933, 207 Pa. 363, 1904 Pa. LEXIS 480

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1904
• Docket: Appeal, No. 119
• Status: Published

Opinion

Opinion by

Mb. Justice Fell,

The plaintiff’s husband, while in the employ of the defend- - ant company as a motorman, was fatally injured in a collision between 'his car, which was running twelve or fifteen miles an hour, and a work car which was standing or was nearly stationary at a curve in the ' road. The company had but a single track, on which the cars ran in both directions, passing each other at switches constructed at intervals along the line. There was a regular schedule for the running of the passenger cars, but none for the work car, as it was moved from place to place as it became necessary to do so in carrying on the work of repair and construction. Motormen of the passenger cars were instructed to look out for the work car, and the motorman of that car was instructed to keep out of the way of the passenger cars by conforming as nearly as possible to their schedule and running in the same direction ahead of or behind them. The deceased had been in the service of the company as a motorman for several years, and during all this time the work ear had been in use. On the day of the accident and on several days preceding it the work car had been run to one end of the line where construction work was being done. Some machinery in the power house had been injured by lightning, and all the cars were behind time.

Various grounds of negligence were alleged in the plaintiff’s statement of claim, but the only one contended for at the trial relates to the manner in which the defendant operated its work car. Since this car was used as necessity required and often in sudden emergencies, it was evidently impracticable that its movements should be regulated by a fixed schedule. There was no danger in its use that could not be avoided by the exercise of reasonable care on the part of the deceased. Moreover there was such an habitual use of the car that whatever danger might result from its presence on the track was a risk of the employment, open, manifest, and fully known to the deceased, and assumed by him without objection. It follows that there was no error in entering a nonsuit: Brossman v. Lehigh Valley Railroad Co., 113 Pa. 490.

The judgment is affirmed.