Goodman v. Delaware & Hudson Canal Co.

Citations

• 167 Pa. 332
• 31 A. 670
• 1895 Pa. LEXIS 905

Syllabus

<p>Negligence — Railroads—Injury to fireman — Master and servants — Wild■cat train.</p> <p>In an action by a fireman against Ms employer, a railroad company, to recover for personal injuries, the evidence showed that his train, while lying in the yard of the station, was given an order to “ wild cat,” which gave it the right of way outside the yard, subject only to the requirement to keep a lookout for regular scheduled trains. Inside the yard the rule was to keep the train under such control that it could be stopped within half the distance that the engineer could see along the track. The evideuce tended to show that while the train was moving, near the limit of the yard, an irregular excursion train was backed up on the same track, and the engineer of plaintiff’s train, not seeing it on account of escaping steam from a passing engine, ran into it, by which plaintiff was injured; but the evidence was conflicting as to whether the collision occurred outside or inside of the yard. Held, that the question was for the jury.</p> <p>It was not error for the court to charge in such case: “If the train master was merely directing the movements of a train which was on scheduled time, he might be acting in the capacity of a conductor, and therefore, in that ease, would be a co-employee, and the company would not be responsible for his act in that position, or his acts done in that capacity. But if, in putting the train upon the track in that place, he was assuming the-duties of his office of train master, by putting a train, an irregular train, upon the track, not upon scheduled time, and orders had been issued by his subordinate giving him the right of way over the same track, then he-was exercising the duties of his office as train master, and his acts were-the acts of the company, and that is for you to find as a fact.”</p>