Pennsylvania Railroad v. Wachter

Robinson, J., delivered the opinion of the Court. We do not see on what grounds this action can be maintained. The appellee was at the time of the accident, and ³⁹⁸ had been for at least eighteen months prior thereto, in the employment of the appellant. On the morning of the 16th of October, 1879, after having performed some work near Woodsborough, he, in company with Eyler, the foreman of the gang, and other repairmen who worked on that section of the appellant’s road, proceeded down the track in a hand-car, to surface up the track, when they were run into by an extra train, coming in an opposite direction, which threw the hand-car from the track, and thereby injured the appellee.

The engine approached at a rapid speed, and without an}'- previous warning. The morning was very foggy, so much so that one could hardly see the engine at a distance of forty yards. Rule 386, in the hook of rules adopted by the company, provides: “ That extra trains may pass over the road at any time, without previous notice, and foremen must always he prepared for them.” Eyler, the foreman, who was examined as a witness for the appellee, says he was supplied with the book of rules and knew of rule 386; that he loaned the hook one day to the appellee; that"witness had, from time to time, cautioned men to be on the look-out for extra trains passing over the road without previous notice. The appellee, himself a witness, admits he had seen extra trains pass over the road without previous notice to any one; that he knew it was his duty to he always on the look-out for such trains; that the position of the men on the hand-car at the time of the accident, facing up and down the. road in opposite directions, was to he on the look-out for danger in either direction, and that extra trains, running without previous notice, was one of these dangers.

Upon such proof as this, there ought not to he any difficulty in regard to the rules of law by which the rights and obligations of the parties are to he determined. ³⁹⁹ When the appellee entered the service of the appellant as a repairman on its road, he took upon himself the natural and ordinary risks belonging to such service. And further than this, if lie knew the appellant, in accordance with the rules adopted for the running of its trains and in the management of its road, was in the habit of running extra trains without notice, and that it was his duty, as one of the repairmen, to be always on the look-out for danger from that source, and with this knowledge continued to remain in the appellants’ service, he must he considered as having assumed the risk to which lie was thereby exposed. Now the proof shows that one of the rules adopted by the appellant in the management of its road, provided that extra trains “ may pass over the road at any time without previous notice.” Whether the appellee himself had read this rule, or whether it had been read to him by Eyler, the foreman, is not material. He admits he knew it was the practice of the company to run such trains without previous notice ; that it was his duty to he always on the look-out for danger to which he was thereby exposed; that with this knowledge he continued to remain in the appellants’ service, and that the position of the men on the hand-car at the time of the accident was for the purpose of avoiding danger from this and other sources.

If this he so, it cannot he said that the mere running of the extra train without previous notice was negligence on the part of the company entitling the appellee to recover. The appellant, it is true, had no right to expose the appellee to risks not ordinarily incident to his employment as a repairman, and which, by ordinary care on its part, might have been avoided. But it had the right to prescribe rules in regard to the management and running of extra trains, and if the appellee with full knowledge of the running of such trains, and of the danger to which he was thereby exposed, voluntarily continued to remain in the ⁴⁰⁰ appellants’ service, lie lias no right to say a better and safer rule might and ought to have been adopted. On the contrary by thus remaining in