
    Kennedy v. Pennsylvania Railroad Co.
    A trachman, employed by a railroad to repair its tracks at a point where •dirt-trains, with engines reversed, are daily passing and repassing, takes the risJc o/his employment, and, in the event of his being killed by such a train, no recov•ery can be had for his death.
    Upon the trial of an action against a railroad to recover damages for the death of •such an employe killed by such train, evidence is inadmissible as to whether, .according to the observation of witnesses, the method of running the train was safe or dangerous.
    Feb. 12, 1889.
    Error, No. 210, Jan. T. 1888, to C. P. Chester ■Co. to review a judgment of nonsuit in an action of trespass on the case, by Mary Kennedy against the Pa. R. R. Co., for the death of her husband, at Aug. Term, 1886, No. 77. Clark and Green, •JJ., absent.
    This action was brought to recover damages for the death of Harry Kennedy, the husband of the plaintiff, who was killed near Atglen, Chester county, June 22, 1885, by a dirt-train of the ■defendant Railroad Co. The deceased was a trackman in the ■employ of the defendant Company, and, on the day of his death, was engaged, with two other workmen, in repairing the Company’s track. While working, they were struck by a dirt-train, to which their backs were turned, and all three were instantly killed. The train consisted of seven low cars, making but little noise, and it was running with the engine reversed. The same train had been employed for 15 months prior to the date of the accident, in carrying dirt over the same section of road, making six trips daily, and constantly running reversed, with the cars pushed by the engine. At the time of the accident, a heavy freight-train was passing upon another track, making considerable noise. In the section on which the dirt-train ran was an abrupt curve through an unusually deep cut, which prevented the engineer from seeing those working on the track until too late to avoid striking them.
    Upon the trial, before Waddell, J., one of the witnesses, who lived upon a farm adjoining the railroad and saw the accident, having described how it took place, and also testified as to the practice of running the dirt-trains in this way, was asked by plaintiff’s counsel:
    “ Q. State, if you observed, whether that was a safe or dangerous method of running a train with the cars pushed in front of the engine, at the point at North Bend, immediately in front of the farm of your father, where you had occasion to observe it, during the fall, winter and spring preceding the accident; and, if dangerous, describe in what way it was dangerous, according to your observation ?”
    Counsel also offered to ask, in connection with this question, whether it was dangerous to the men employed as track hands at that particular point. Objected to, objection sustained and exception. [1]
    Another witness, who had ridden on the dirt-train, and was familiar with the curve and the manner of running the train, was then asked:
    “ Q. At this point where the accident happened, would yon say, from your observation, that it was a more dangerous point, with the cars running ahead of the engine rather than with the engine in front?” Objected to, objection sustained ánd exception. [2] '
    At the close of the plaintiff’s testimony the court granted a nonsuit, and subsequently discharged a rule to take it off.
    
      The assignments of error specified the action of the court, 1, 2, in excluding the offers of testimony, quoting them; 3, in granting the nonsuit; and, 4, in discharging’ the rule to take it off.
    
      Alfred P. Reid and R. Jones Monaghan, with them J. Frank E. Hause, for the plaintiff in error.
    The questions excluded were competent and were expressly approved in Schall v. Cole, 107 Pa. 1.
    Where negligence can be inferred from a given state of facts, it is a question of fact for the jury, not of law for the court. Wharton on Negligence, §§ 217 and 420, n.; Ireland v. Plank Road Co., 3 Kern. 533; Kellogg v. R. R., 24 How. Pr. 177, 5 Cent. L. J., 305 Jan. 26, 1877; Patterson on Railway Accident Law, § 384; Johnson v. Bruner, 61 Pa. 63;. Penna. R. R. v. Coon, 111 Pa. 440.
    Negligence, or its correlative, contributory negligence, is peculiarly a question of circumstances, and is almost always for the jury. Longenecker v. Pa. R. R., 105 Pa. 332; Schum v. Pa. R. R., 107 Pa. 11; Lehigh Valley R. R. v. Brandtmaier, 113 Pa. 616.
    A master owes a duty to his servant in the' protection of the latter’s safety. Green & Coates St. R. R. v. Bresmer, 97 Pa. 106; P. W. & B. R. R. v. Keenan, 103 Pa. 125; Hough v. Texas & Pacific R. R., 100 U. S. 213; Tissue v. B. & O. R. R., 112 Pa. 98; Abel v. R. R., 5 Cent. R. 618; 3 Wood on Railways, 1488; Rummell v. Dilworth, 111 Pa. 349. .
    The master is liable for extraordinary dangers. Patterson v. R. R., 76 Pa. 389.
    Contributory negligence is a matter of defense and will not be presumed. Lehigh Valley R. R. v. Hall, 61 Pa. 368; Pa. R. R. v. Weber, 76 Pa. 160; Scranton v. Dean, 2 W. N. C. 467; Weiss v. Pa. R. R., 79 Pa. 390; Pa. R. R. v. Weiss, 87 Pa. 448; Penna. R. R. v. Werner, 89 Pa. 65; Longenecker v. Pa. R. R., supra; C. & P. R. R. Co. v. Rowan, 66 Pa. 399.
    The servant has a right to assume that all such precautions as are reasonably necessary for the safety of himself and his fellows have been taken by the employer. Schall v. Cole, supra; Rummell v. Dilworth, supra.
    Those agents who are charged with the business of supplying necessary machinery, appliances and instrumentalities of the business are not to be regarded as fellow-servants. R. R. v. Mason, 109 Pa. 300; Tissue v. R. R., supra; Hough v. R. R., supra; 3 Wood on Railways, 1470-73, 1477, n.; Lewis v. Seifert, 20 W. N. C. 145.
    
      John J. Pinkerton, for the defendant in error.
    As the case was not submitted to the jury, the rejection of testimony has no bearing whatever in the'present aspect of the case.
    Where there is no evidence of negligence, or at most a scintilla, it is the duty of the court to withdraw the case from the jury. R. R. v. Schertle, 97 Pa. 455; P. & R. R. R. v. Heil, 5 W. N. C. 93; Cent. R. R. of N. J. v. Feller, 4 W. N. C. 162.
    An employé who undertakes the performance of hazardous duties, assumes such risks as are incident • to their discharge from causes open and obvious, the dangerous character of which he has had opportunity to ascertain. Wharton on Negligence, §§ 199, 214, 224, 244; Wood on Master and Servant, 382; Kirby v. Pa. R. R., 76 Pa. 506; Ballou v. Ry., 5 Am. & Eng. Ry. Cases, 506; R. R. v. Shertle, 2 Ib. 158, n.; Wells v. R. R., 56 Iowa, 520; Brossman v. Lehigh Valley R. R., Pa. 490; Patterson v. R. R., 76 Pa. 389; Pittsburg & Connellsville R. R. v. Sentmeyer, 92 Pa. 280; Campbell v. Pa. R. R., 2 Cent. R. 48; Mulherrin v. D. L. & W. R. R., 81 Pa. 375; Umback v. Lake Shore, etc., R. R., 8 Am. & Eng. Ry. Cases, 100; Sweeney v. Cent. Pac. R. R., Ib. 152; Sullivan v. India Mfg. Co., 113 Mass. 398; M. R. & L. E. R. R. v. Barber, 5 Ohio St. 541; Muldowney v. I. C. R. R., 39 Iowa, 615; B. & O. R. R. v. Stricker, 51 Md. 47; Hughes v. Winona, etc., R. R., 27 Minn. 137; Clark’s Adm’rs. v. Richmond & Danville R. R., 30 Albany L. J. 252; Owen v. N. Y. Cent. R. R., 1 Lans. 108; Clarke v. Holmes, 7 H. & N. 937; Gibson v. Erie Ry., 63 N. Y. 452.
    Feb. 25, 1889.
   Per Curiam,

It was not error to reject the offer of evidence contained in the first and second specification's. If we concede that it was dangerous to run a train of gravel cars by pushing them with the locomotive, at the place in question, it was a danger well known to the deceased. He had been in the employ of the company for some time, and was working at the spot when the accident occurred. He had seen several trains daily passing and repassing in this manner. When he entered upon his employment, he took the risk of that employment. The danger of being run down by one of these gravel trains, whilst at his work, was constantly before him, and there is no room for an allegation that he did not know it. No elaboration could make this any clearer, and authorities, upon a principle of law so well settled, are not needed.

Judgment affirmed. J. C. S.  