Stoker v. Philadelphia & Reading Railway Co.

Citations

• 254 Pa. 494
• 99 A. 28
• 1916 Pa. LEXIS 757

Syllabus

<p>Practice, O. P. — Statements of clcdm — Joinder of causes of action — Demwrrer—Waiver by plea.</p> <p>1. Where a plaintiff’s declaration or statement contains several counts each setting forth an independent cause of -action, the plaintiff may -withdraw any of such counts upon the trial and go to the jury on the others.</p> <p>2. Where a statement of claim in an action of trespass alleges a violation of the the acts of congress and also negligence at common law, the plaintiff is entitled to go to the jury if 'the allegations of negligence at common láw are supported* by the evidence, although there be no evidence of a violation of the acts of congress.</p> <p>3. When a statement of claim under the Practice Act of May 25, 1887, P. L. 271, sets forth inconsistent causes of action the objection should be raised by demurrer; and when defendant pleads to the statement he is deemed to have waived such objection.</p> <p>Negligence — Railroads—Master and servant — Railroad yard— Shifting cars at night — Absence of lights — Contributory negligence —Judgment for defendant n. o. v.</p> <p>4. In an action by an employee against a railroad company to recover damages for personal injuries sustained by being struck by a box car which was being shifted in defendant’s yard late at night, as the result of the alleged negligence of the defendant in moving cars without lights or a brakeman upon them, judgment for the de-' fendant was properly entered n. o. v., where it appeared that while plaintiff was crossing the yard in the course of his employment, he was struck at a point where there was neither a crossing nor path and where his presence could not have been anticipated; and that plaintiff could have seen the car at a considerable distance away had he paid proper attention to his surroundings.</p>