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KELLY v. PHILADELPHIA TRANSPORTATION COMPANY (01/03/50)

January 3, 1950

KELLY, APPELLANT,
v.
PHILADELPHIA TRANSPORTATION COMPANY



Appeal, No. 156, Jan. T., 1949, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1947, No. 4047, in case of Joseph A. Kelly v. Philadelphia Transportation Company. Judgment affirmed.

COUNSEL

Henry D. O'Connor, with him Edward A. O'Neill and Joseph W. O'Connor, for appellant.

Philip Price, with him Jay B. Leopold, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Stern

[ 363 Pa. Page 490]

OPINION BY MR. JUSTICE HORACE STERN

At about 8.30 o'clock on a September morning plaintiff, a painter, was working on a scaffold which was suspended above defendant's track, clear of its trains, on the Delaware River Bridge at a point somewhat toward the Camden side of the river and on the north side of the bridge. He had been painting in a standing position,

[ 363 Pa. Page 491]

    but in order to move the scaffold, which he desired to do, he had first to seat himself upon it; in so doing he lowered his legs beneath the scaffold, which brought them into the path of an oncoming westbound train and his left ankle was struck by the top of the train. For the injury thus sustained he brought the present action against the defendant company. The court allowed the case to go to the jury, which found a verdict for defendant. Plaintiff's motion for a new trial was denied and he now appeals.

The only reasons assigned for a new trial were the more or less conventional ones that the verdict was against the evidence, the weight of the evidence, the law, and the charge of the court. We find nothing of merit in any of them.

The plaintiff had been employed in painting the bridge structure for some 4 or 5 weeks previous to the accident. We may assume, for present purposes, that defendant was negligent in not having given, as plaintiff claims, any warning, by gong or whistle, of the approach of the train and in not operating it at a lower speed than the 35 miles per hour to which one of his witnesses testified. But plaintiff's contributory negligence is so manifest that the court might well have given binding instructions for defendant. It is true that in weighing the contributory negligence of a person working on or in close proximity to railroad or trolley tracks he must be judged by a more liberal standard than that applicable to an ordinary pedestrian crossing the tracks; one thus occupied, with his mind necessarily intent upon his duties, cannot be required to be as vigilant and to keep as constant a watch as a mere traveler: Van Zandt v. Philadelphia, Baltimore & Washington R.R. Co., 248 Pa. 276, 280, 281, 93 A. 1010, 1011; Copertino v. Chrobak, 346 Pa. 49, 51, 29 A.2d 504, 505; Phillips v. Philadelphia Transportation Co., 358 Pa. 265, 268, 56 A.2d 225, 226; Shaffer v. Torrens, 359 Pa. 187, 190, 58 A.2d

[ 363 Pa. Page 492439]

, 440. But this does not mean that such a person is wholly relieved from the duty to guard his own safety, to which end he must still use reasonable care under the circumstances. In the Van Zandt case, it was said (p. 284, A. p. 1012): "It was also his [the workman's] duty to keep a reasonable lookout for trains." In the Copertino case, it was said (p. 51, A. pp. 505, 506): "... this rule does not apply where... the circumstances are such that [the workman] is free to take precautions for his own safety." In the Phillips case it was said (p. 268, A. p. 226): "It was his [the workman's] legal duty to keep a reasonable lookout and to exercise care in the circumstances commensurate with the dangers and consistent with his faithful performance of the duties of his employment", -- a statement reiterated (p. 190, A. p. 440) in the Shaffer case. So too in Sweatman v. Pennsylvania R.R. Co., 264 Pa. 286, 289, 107 A. 697, 698, it was said: "... It is true that while thus walking he [the workman] was doing what his labor called for, but the act of walking did not relieve him from the obligation of using due care while thus engaged. His mind was not so absorbed or taken up that it might be said he could not properly take care care of himself." And in Richards v. Reading Co., 333 Pa. 513, 517, 5 A.2d ...


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