
    Carroll v. Pa. Coal Co. Corbett v. Same.
    The track running out to a coal dump was constructed on trestles partly on the pile of coal. The outer ends of the rails projected some ten feet beyond the last; temporary trestle, and were secured by large iron “ dogs,” bolted to the rails, the shanks of which were driven into the caps of the outer permanent and inner temporary trestle. A permanent fastening would have made the rails more secure. When the track settled by the sliding of the coal, it was the duty of the employees in charge of the car to put in blocking sticks to arrest the motion of the car or to raise the track at the end by means of levers and blocks so as to change the grade.' Certain employees, with knowledge of these requirements, allowed the track 'to settle in this way without blocking it up. Several cars were run out. It did not, clearly appear what effort was made to check the last car, but it got beyond the. control of the men, ran violently against the head block, drew out the dogs which held one of the rails, which, swinging up, struck two of the employees,-causing their death. In an action by their widows to recover damages for alleged negligence of the company: Held that they could not recover.
    Green, J. — The deceased voluntarily assumed the visit of the employment; they must have known the presence of danger the moment it arose, and the plain and well known remedy to prevent injury was entirely in their own hands. In these circumstances, the mere occurrence of the injury proves the cohtributi/ve negligence of the men quite as much as it proves negligence on the part of the defendant. ■ . ;
    
      JDeclarations excluded as not part of the res gestee.
    
    Feb. 23, 1887, and Feb. 22, 1888.
    Errors, Nos. 257 and 260, Jan. T.- 188Y, to C. P. "Wayne Co., to review judgments entered on verdicts for defendants in actions on the case by Catharine Carroll and Mary A. Corbett against the Pa. Coal Co., to recover damaged for the deaths of their respective husbands through the alleged negligence of the defendant, at March T. 1885, No. Y8, and Oct. T.: 1885, No. 1Y5. Green, J., absent at argument; Trunkey and Clark, JJ., absent at reargument.
    The cases were tried together, by agreement, before Seely, P. J. The facts are stated as follows in defendant’s paper book: ,1
    On Nov. 24, 1884, Carroll and Corbett were engaged in pushing coal cars of the defendant along its track leading to a “dump.” The track was laid on three permanent trestles, and three temporary trestles; the former, about twenty feet high, built on stone foundal tions, and the latter, six feet high, erected on the coal, as the pile was extended in dumping. They were placed ten feet apart, and across them were laid two heavy wooden rails forty-three feet long, with a “ head-block ” of timber bolted across the outer end, to preT vent the cars from going off. The inner ends of these rails rested bn the cap of the outer permanent trestle, and the outer ends proj jected thirteen feet beyond the last temporary trestle. The iron rails were laid on these wooden rails. The road was continued on similar timbers over the permanent trestles to the main track, from which the coal cars were received by means of a turn table. To prevent the projecting rails from falling, from the weight of the car,' they were secured by large iron “dogs,” bolted to the rails, the shanks of which, some three inches long, and barbed, were driver! into the caps of the outer permanent and the inner temporary trestle. Each rail was secured by two pairs of “dogs.” One pair was bolted to the rail, at the inner end, a “ dog ” on each side of the rail, and the shanks driven into the. cap of the trestle on which this end of the rail rested ; the other pair were bolted to the rail, in like manner, ten feet from the first pair, and the shanks driven into the cap of the trestle at that point. To extend the road, as the dumping ground became filled to the level of the track, another temporary trestle six feet high was set up on the coal, ten feet farther out, the dogs were knocked out, the long rails drawn ten feet farther out and across the last trestle, and again fastened by driving the dogs into the caps of the trestles as before; and rails ten feet long were placed in the interval thus made next to the inner ends of the long rails. In this manner the road was extended, in sections of ten feet, until the outer limit of the dumping ground was reached. This method of securing the long rails by dogs, instead of by a permanent fastening, was adopted in order that the road might be thus extended .in any direction and to any point where- it was desired to pile the coal. One of defendant’s witnesses testified that, at an expense of $10 or $15, in each case, the rails could have been fastened so that they would not have given way, but it would take more time to change the tracks with such an arrangement-. ¡
    • It frequently happened that a slide of coal took place, at the outer end of the pile, which caused a slight settling down of the outer temporary trestle, and gave the track a down grade at that point. When this happened,' the rails were raised with a lever, and planks laid on the cap of tbe outer trestle to restore the rails to their proper height and make the track level.
    Six men, three on each side, pushed each car to the projecting portion of the track and there dumped it. The men at the ends of the car were provided with stopping or blocking sticks with which to block the wheels and stop the speed of the car; the men at the center, one on each side, dropped and lifted the car doors in dumping. The men walked on a single plank laid at the sides of the track. ;
    The duties of the men having the car in charge were to run it without striking the head-block, and, whenever the outer trestle setr tied, to block it up without delay, as the down grade thus given.-to the track made it difficult to check the speed of the car. If the cay was allowed to strike the head-block, the concussion tended to loosen the dogs in the caps, and it was part of the duty of the men to observe the dogs, and when they showed any sign of loosening,.to drive them in with a spike maul kept for the purpose. The settling of the outer trestle could not be observed from the main track, but the men engaged in dumping would at once detect it, by the more rapid movement of the car on that part of the track. They were required to exercise their own judgment as to pushing and stopping the car, so as to keep it under control, and avoid striking the head? block, or at least not to allow it to strike the head-block with such violence as tended to loosen the dogs. The standing order, well known to the men, and generally observed by them, was to raise-the track whenever they found it had settled, without waiting for any special direction from the foreman ; and if they disagreed as to the-necessity for raising it, any one of them could refer the question to the foreman for decision. Coal had been dumped in this manner,, on roads thus constructed, for upward of thirty years.
    Carroll had worked on these “ dumps ” for more than twenty-years, and Corbett for five or six years. Both were familiar with the duties required, the dangers to be avoided, and the manner of avoiding them. On the morning of the accident, eight cars were dumped, Carroll being employed on all, and Corbett on the last three. Carroll was at the middle of the car and Corbett at the forward end, on the same side. Several of the cars were run out at such speed as to strike the head-block with considerable force, and during this time the outer trestle settled. Before Corbett came, one of the men employed on the car warned Carroll and the others that the road was in a dangerous condition from the settling of the outer trestle. Corbett, after beginning work at the car, discovered the dangerous condition of the road, and spoke of it. No attention, however, was given to raising the track, or seeing that the dogs were securely in place; but the men proceeded with their work, Corbett cautioning his fellow blocker to put in his blocking stick in time on account of the danger. It does not clearly appear what effort was-made to check the last car as it was run out, but it was allowed te get beyond the control of the men, on the down grade caused by the settling of the outer trestle, and ran with great violence against the head-block. The concussion drew out the dogs that held one rail, and its projecting end went down from the weight of the car. The man at the rear of the car saw the danger, and jumped off in time to escape; but the inner end of the rail, swinging up, knocked off Carroll and Corbett, inflicting injuries that resulted in death.
    As Carroll’s duty was to help raise the doors, he was not provided with a stopping stick. Corbett, and the three other men at the ends, carried stopping sticks. Mrs. Corbett, on cross-examinaation, was asked the following, although not examined in chief upon the subject: “ Q. When your husband was brought home what, account did he give of the way he was hurt ? A. My husband said but a very few words. He was not very well able to speak, after he was brought home. Q. Hid he say anything about whether he put-in any blocking sticks ? A. He said he saw two blocking sticks in the car as he was lying in the coal.”
    Shelp, who was the boss in charge testified for the defendant, inter alia: “Q.. State whether you heard Corbett say anything-after he was hurt, in regard to whether he put in a stopping block?” Objected to. The Court: “ Q. How long was it after the accident, that you heard these declarations, if you heard any ? A. It was that evening. They were made after we got him up the coal pile, and they were made again at his house that evening. The Court: We will permit you to prove what declaration he made at the coal pile in reference to the accident.” Bill sealed for plaintiff. Mr. Wilson : “ Q. What did he say there at the coal pile ? A. He said at the coal pile £If we had put our sticks in that car, and held it, this would not have happened.’ The Court: Q. Were these declarations made there at the coal pile ? A. They were made in the shanty, in about 20 minutes after the accident.”
    Mrs. Corbett, being recalled, was asked the following question: [« Q. Did you have any conversation with your husband very soon after tbe accident happened, when he was brought home, about how it occurred, and if so what did he state with reference to the stopping sticks in the wheel?] [1] Mr. Wilson: Q. Fix the time. A. It was shortly after the accident happened. He told me — ” Objected to. Mr. Purdy: “ Q. How soon afterward, and where was it ? A. It was in my house. Q. How long after the accident ? ■Q. The same day. Immediately after he was laid in • the bed. Q. Soon after he was brought home? A. Yes, sir. The Court: I don’t think that you can introduce the declarations of your own party. I am not clear that we were right in permitting the defendant to introduce that evidence, and if they could not do it, of course the plaintiff cannot. But we confined the defendant to a time very close to the accident, considering those declarations made immediately in connection with, the accident a part of the res gesta.” Objection sustained, and bill sealed.
    The court charged the jury, inter alia, as follows:
    [“ Now, the manner of construction, which is complained of here, the manner of fastening these long rails to the trusses by dogs, was open and apparent and visible to any person employed upon these roads, and Luke Corbett and William Carroll must have known, from the time that they were employed upon that road, how these rails were fastened, and, frbm their experience upon that road, we think they must have so understood the security, or want of ■security of that construction, that they cannot now come into court and complain of that manner of construction; and by continuing in the employ of the company, and working upon that road, they must be held in law to have assumed that risk.] [2] . . . [We hold that the plaintiffs are precluded from recovering in this case by reason of the fact that this accident occurred while they were engaged upon a track which they themselves are shown to have known to be unusually dangerous. They incurred an unnecessary risk, and they did it, so far as we can see, voluntarily.] [3] . . . [We feel compelled to say that, under all of the evidence, your verdict must be for the defendant.”] [4]
    Other evidence is stated in the opinion of the court. Yerdicts and judgments for defendant.
    ■ The assignments of error specified the action of the court, 1, ££ in sustaining the defendant’s objection to the question ” enclosed in brackets above, quoting it but not further quoting the bill of exceptions ; "2, 3, 4, in charging as above, quoting the portions as enclosed in brackets; 5, in not submitting the question of negligence; and, 6, contributory negligence.
    
      Geo. S. Purdy, for plaintiffs in error.
    Such inferences as a jury might lawfully draw from the evidence favorable to the plaintiff must be conceded and all reasonable presumptions, based upon such evidence, should be taken most strongly against the defendant, and in favor of the plaintiffs. McGrann v. P. & L. E. R. R. Co., 111 Pa. 171; Miller v. Bealer, 100 Pa. 583; Smyth v. Craig, 3 W. & S. 14; Bevan v. Ins. Co., 9 W. & S. 187; Bigley v. Jones, 5 Cent. R. 670; Maynes v. Atwater, 88 Pa. 497.
    ’■ The master must not expose his servants to unnecessary risks or dangers. Tissue v. B. & O. R. R. Co. 112 Pa. 91; Patterson v. P. & C. R. R. Co., 76 Pa. 389; Ford v. Fitchburg, etc., R. R., 110 Mass. 240; Ardesco Oil Co. v. Gilson, 63 Pa. 146; O’Donnell v. Allegheny Valley R. R., 59 Pa. 239.
    The ’ superintendent’s negligence was that of the corporation defendant. Frazier v. Pa. R. R., 38 Pa. 104; Ardesco Oil Co. v. Gilson, supra.
    Negligence is the absence of cafe according to the circumstances Turnpike v. R. R., 54 Pa. 345; and P. W. & B. R. R. v. Stinger, 78 Pa. 219.
    As it was a frequent occurrence for the ear to strike, the head1 block, the employees had the right to presume that the rails were so-secured as not to give way under such circumstances. Shearman &. Red. on Neg., 3d ed., 122, note 3.
    If the danger is one which a person of ordinary prudence would! believe could be entirely avoided by the use of certain additional precautions, the servant would not, by continuing in his service, lose his right to recover for damages suffered by him while using such precautions. Shearman & Red. on Neg., 3d ed., 125.
    If the plaintiffs knew the road was defective and these defects caused the accident, still it would not raise a presumption of contributory negligence. Patterson v. P. & C. R. R. Co., 76 Pa. 393; Snow v. R. R. Co., 8 Allen, 441; Tissue v. B. & O. R. R., 112: Pa. 91.
    If the servant,, having knowledge of defects in machinery, is-promised that it shall be remedied and continues to use it in the-belief that the defects will be remedied within a reasonable time, it. is a question for the jury whether he was negligent in its use afterward. Conway v. Vulcan, 6 Mo. 102; Hawley v. Northern, &c R. R., 82 N. Y. 370; Hough v. R. W. Co., 100 U. S. 213; Clarke v. Holmes, 7 Hurlet & Nor. (Ex.) 937; Snow v. R. R. Co., 8 Allen, 441. See, also, Shearman & Red. on Neg., p. 127, pl. 98. So, also, where the risk is not so much as to threaten immediate injury Patterson v. P. & C. R. R., 76 Pa. 391.
    The meaning of Corbett’s words as to the dangerous character of the road was for the jury. Maynes v. Atwater, 88 Pa. 497.
    The negligence of any co-servant, co-operating with that of the defendants, in producing the injuries, would not relieve the latter from liability. Cayzer v. Taylor, 10 Gray, 274; Benzing v. Steinway, 101 N. Y. 517; Gd. Trunk R. R. v. Cummings, 106 U. S. 700; Ellis v. N. Y. L. E. & W. R. R., 95 N. Y. 546; s. c. 17 Am. & Eng-R. R. Cases, 641; Paulmier v. Erie R. R., 5 Vroom, 151; Elmer v. Locke, 135 Mass. 575.
    Negligence is a mixed question of law and fact. Kay v. Pa. R. R. Co., 65 Pa. 269.
    . Negligence can be determined by tbe court only where the standard is fixed. R. R. v. McElwee, 67 Pa. 311; McCully v. Clark, 40 Pa. 406; R. R. v. Henrice, 92 Pa. 431; Pa. R. R. v. Coon, 111 Pa. 430; Johnson v. Bruner, 61 Pa. 58; North Penn R. R. v. Heileman, 49 Pa. 63; Pittsburg, &c., R. R. v. Kane, 5 Cent. R. 909. But not where the standard of duty shifts. Pa. R. R. v. Coon, 111 Pa. 430; Kay v. Pa. R. R., 65 Pa. 269; Sullivan p. Pa. R. R., 30 Pa. 234; McKee v. Bidwell, 74 Pa. 223.
    Whether there was negligence in a given case, is generally a question for the jury. Hydraulic Works v. Orr, 83 Pa. 332; L. V. R. R. v. McKeen, 90 Pa. 122; North Penn. R. R. v. Kirk, 90 Pa. 15; P. & R. R. R. Co. v. Killips, 88 Pa. 405; Johnson v. W. C. & Phila. R. R., 70 Pa. 357; Born v. Plank Road, 12 W. N. C. 283; Kay v. Pa. R. R., 65 Pa. 273; Canal Co. v. Bentley, 66 Pa. 30; Fritsch v. City of Allegheny, 91 Pa. 226.
    Questions of care, skill, vigilance and proper conduct are for the jury. Beers v. Housatonic R. R., 19 Conn. 566; Pa. R. R. v. Barnett, 59 Pa. 259; Johnson v. Bruner, 61 Pa. 58; Toledo, etc., R. R. v. Foster, 43 Ill. 415 ; P. & R. R. R. v. Spearen, 47 Pa. 300; Schillings. Abernethy, 112 Pa. 437.
    ; Doubts as to the inferences to be drawn from facts, should be submitted to the jury. Neslie and Wife v. Pass. R. R., 113 Pa. 300; McKee v. Bidwell, 74 Pa. 218; P. & R. R. R. v. Killips, 88 Pa. 405; Crissey v. Pass. R. R., 75 Pa. 83; Longenecker v. Pa. R. R., 105 Pa. 328; Johnson v. Bruner, 61 Pa. 58; McCallin v. Herzer, 5 Cent. R. 678.
    Where there is any evidence, the cause should not be taken from the jury. Jucker’s Admr’s. v. R. R., 2d Am. & Eng. R. R. Cases, 41; Lee v. Woolsey, 16 W. N. C. 337; Pa. R. R. v. Ogier, 35 Pa. 60.
    The amount of danger and the circumstances which led the Ílaintifí to incur it, are for the jury. Clayards v. Dethick, 12 Q. B. 439.
    As to the first assignment, we should have been permitted to give the whole of the conversation, of which the defendant called out a part.
    
      H. Wilson, with him W. H. Dimmick, for defendant in error.
    —We cite the law as to risk of employment, as laid down in Brossman v. R. R., 113 Pa. 498.
    The- master is bound to use only ordinary care in providing suitable structures, engines, tools and apparatus, and in selecting proper servants. Rummell v. Dilworth, 111 Pa. 349; Payne v. Reese, 100 Pa. 306; Mansfield Coal Co. v. McEnery, 91 Pa. 190; O’Donnell v. R. R., 59 Pa. 248.
    The declarations made by Corbett at his house were immaterial. The accident resulted from the low track as much as from the failure to use stopping sticks. Besides, the declarations were too late, in point of time, as res gesta.
    Oct. 1, 1888.
   Green, J.,

These two cases were tried before the same jury by agreement of the parties, and, on the trial, after all the testimony was closed, the court below directed verdicts to be entered in favor of the defendant in each case. The learned judge was of opinion that, upon the plaintiff’s testimony, a case of contributory negligence was developed, and that therefore no recovery could be had, and so instructed the jury. A careful examination of the evidence given on the trial satisfies us that there was no error in this action. The dangerous condition of the track upon which the coal cars were being moved, at and before the time of the accident, and the full knowledge of that condition by the husbands of the plaintiffs, was completely established by the plaintiff’s witnesses, who were corroborated, and not in any manner contradicted, by the witnesses for the defence. Thus, Frank Hagerman, one of the witnesses for the plaintiffs, was asked: “ Q. If- you heard Mr. Corbett give any caution or say anything to the men working with him that morning in regard to stopping sticks, what was it? A. Yes, the car before it went down, he looked around as we were going out and he said: ‘ This is a dangerous road and you want to get your blocking sticks in in time.’ Q. Corbett-said so to you? A. -Yes, sir. Q. "What did you do ? A. That cautioned me and I got mine in in time.” A similar statement as to the condition of the road was made to Carroll, and other workmen, very shortly before the accident, by Arthur Stearns, another witness of the plaintiffs. The substance of all the testimony was that the dangerous condition of the road arose from the projecting portion of the track becoming slightly lowered so that, beyond the last supporting trestle, the track was on a down grade, and that this caused a more rapid movement of the car, which, being thus impelled to strike the head block with some violence, caused the dogs which held the long rails in place to be pulled out and the car to be precipitated. It was entirely undisputed that this danger was immediately made apparent to all the men working the car, by its more rapid movement, and that it was perfectly well understood by both of the deceased workmen. The testimony of Thomas Orr, Arthur Stearns and Frank Hagerman, all of them plaintiffs’ witnesses, makes this most clear. The means of preventing accidents from this source were also fully proved by the witnesses on both sides. In the first instance, and as an immediate preventive, the men were required, whenever the track got into this condition, to put in their blocking sticks so as to arrest the movement of the car and prevent it from striking the head-block with force, and this was constantly done. The more permanent remedy, however, was to raise the track at the end by means of levers and ■blocks so as to change the down grade into an up grade. It was the constant habit and the plain duty of the men to resort to these means, whenever the danger became obvious, without waiting for any instructions from the foreman, and such were their orders many times repeated. Thus Stearns testified: “ Q. The men that carry the blocks have to use their own judgment about where to put in the blocks? A. Yes, sir. Q. They wouldn’t wait for any orders? A. No, sir; there was no one to stand there and give them orders. They had to use their own judgment. Q. It depended entirely on their judgment and the care which they exercised ? A. Yes, sir.” Oole, the general foreman, testified: Q. What were the orders given by you with regard to the keeping up of the road, either to Carroll and Corbett, or to others when they were present and heard it ? A. I gave them orders to keep up the road when the road got out of shape or too low or any thing the matter; to put it up without further orders. They have got these orders probably fifty times and may be a hundred. And Mr. Carroll and Mr. Corbett and all the men on the cars have heard those orders many times from me and also from Shelp.” Shelp was also examined and testified to the same effect. The result of all the testimony is, and it is entirely undisputed, that the source of the danger was the depressed condition of the projecting end of the track; that this became immediately manifest to the men working the car ; that the remedies to prevent injury were very simple and were entirely in the hands of the men themselves, who, including the deceased workmen, were in the constant habit of using them, and were under orders to do so. The case, therefore, was precisely as the court below held, one in which the deceased voluntarily assumed the risks of the employment; that they must necessarily have known the presence of danger the moment it arose, and that the plain and well-known remedy to prevent injury was entirely in their own hands. In these circumstances, the mere occurrence of the injury proves the contributivenegligence of the men quite as much as it proves negligence on the part of the defendant, and, as the assumption of the risk of the employment was entirely voluntary, there can be no recovery.

Judgment affirmed. T. B.

Cf., as to res gestae, Ogden v. Pa. R. R., infra, page 249.  