
    ORRISON VS. THE PENNSYLVANIA COMPANY.
    Where an engineer knows aj switch is not attended to properly, or is defec* tively constructed, and does not complain to the company; he cannot recover for injuries suffered in an accident, caused by the switch being misplaced.
    Error to Court of Common Pleas No. 1 of Allegheny County. No. 260 October and November Term, 1875.
    
      The facts of the case are as follows:
    Jacob Orrison, the plaintiff, was employed as engineer upon a through passenger train on the Pittsburg & Erie Railway, operated by the Pennsylvania Company. On the 4th day of November, 1873, he was running a train from Erie to Pittsburg, and in passing Sharpsville the train was thrown from the track. The engine was overturned and fell upon the plaintiff, by which he was seriously injured in the head, disabled for more than a year, and to some extent permanently injured. Sharpsville, where the accident occurred, is a shifting station, and the junction of the Sharpsville & Oakland Coal R. R., at which point there are eight or ten tracks and a large number of switches, six of which are on the main track.
    The accident was caused by a misplaced switch; how it became displaced the evidence did not disclose. It appeared in evidence that the switches at this point were not provided with locks, and that no person was employed to-attend them. The target of the one misplaced was broken and partially concealed by a telegraph pole.
    Several accidents had occurred at the same place and in the same manner prior to this one, of which the proper officers of the company had been notified. The plaintiff’s business was to run from Erie to Pittsburg and Sharpsville station, the station for his train was a half mile or more above, the switches.
    He had never been at that'point except in passing, and his only knowledge of the construction of the tracks and switches in the yard, was from running through it. After one of the previous’ accidents which happened to a train upon which he was employed, he was informed that the switches had been provided with locks.
    He never knew that there was no one whose duty it was to see that they were properly placed. At the time of the accident the plaintiff’s attention was attracted by some cattle on the track.
    During the trial the plaintiff’s attorneys proposed to ask a witness on the stand whether in his opinion the track was properly constructed and attended, which upon objection, was refused. He was permitted, however, to show that other companies either locked the switches or had persons -employed to attend them, and generally both.
    
      Upon the closing of the plaintiff’s testimony, the defendant moved for a compulsory non-suit, for the following reason: “The plaintiff, being a servant in the employ of the defendant, assumed all risk of such employment which the defendant cannot control, including those arising from the negligence of his fellow-servants and as the accident did not occur through any fault or negligence, on part of the defendant; he cannot recover.”
    The non-suit was ordered, and upon motion to the Court in banc to set aside, said motion was refused.
    Plaintiff then took this writ of error complaining of the entry of the non-suit and the rejection of.testimony.
    
      Messrs. Slagle & Wiley for plaintiff in error
    argued that the question of negligence is peculiarly for the jury. W. C. & P. R. R. Co. vs. McElwee, 17 P. F. S. 315; Bevan vs. Insurance Co., 9 W. & S. 187; Baker vs. Lewis, 9 Casey 301.
    The switch was not properly constructed, and was the fault of the company. Frazer vs. Penna. R. R. Co., 2 Wright 104; Mullen vs. Phila. & Southern Steamship Co., 5 Pitts. L. J. 135; Shearman and Redfield on Negligence, Sect. 89.
    The doctrine that prevents a servant recovering is not to be extended. Catawissa R. R. Co. vs. Armstrong, 13 Wright 194. The master is liable if unsafe machinery is employed. Weger vs. Penna. R. R. Co., 5 P. F. S. 460; Patterson vs. P. & C. R. R. Co., 16 P. F. S. 389; Clark vs. Holmes, 7 Hur. & Nor. Ex. 937; Snow vs. Housatonic R. R. Co., 8 Allen 441; Williams vs. Carter, 52 Mo. 372; Keegan vs. Western R. R. Co., 4 Seld 175; Porter vs. Hannibal R. R. Co., 5 Pitts. L. J. 181; Shearman and Redfield on Negligence, Sect. 94, note 2.
    They also cited Gibson vs. Erie R. R. Co., 1 N. Y. W. Dig. 352; Keiley vs. Belcher Silver Mining Co., 1 N. Y. W. Dig. 349; Knaresborough vs. Belcher Silver Mining Co., 6 Pitts. L. J. 50; C. & N. R. R. Co. vs. Jackson, 55 Ill. 496; Smith vs. Lowell, 6 Allen 40; Reed vs. Northfield, 13 Pickering 98.
    
      Messrs. Hampton Malzell, contra.
    
   The decision of the lower Court was affirmed on October 16, 1876, in the following opinion :

Per Curiam.

This being a compulsory mon-suit, we must look throughout the testimony to discover the plaintiff’s right of action, and in the testimony of himself we find that he discloses his own knowledge of the mode in which the switch was kept and tended, without complaint on his part or calling the attention of the company to the alleged want of a lock or an attendant. It is only for negliligence of the company itself endangering his safety, he can complain, and not for that of his fellow employees.

Judgment affirmed.  