Nattress v. Phila. & Reading R. R. 150 Pa. 527

Nattress, Appellant, v. Phila. & Reading R. R. Co.

Negligence—Bisk of employment—Continuous service.

Where one voluntarily assumes continuous service, becomes exhausted and falls asleep at his work and thereby suffers injury, there can be no recovery from the employer.

Argued May 24, 1892.

Appeal, No. 422, Jan. T., 1892, by plaintiff, Annie C. Nattress, now Harris, from judgment of C. P. Union Co., May T., 1889, No. 186, compulsory nonsuit.

Before Paxson, C. J., Sterrett, Green, Williams, McCollum and Mitchell, JJ.

Trespass for damages for death of plaintiff’s husband by alleged negligent running of defendant’s train.

The evidence, on the trial, before McClure, P. J., was to the following effect: William C. Nattress, plaintiff’s husband, had been employed on defendant’s road in various capacities for some years, part of the time as fireman on a locomotive and lastly, on Dec. 8, 1888, he was promoted to the position of locomotive engineer. From that time until Dec. 12, he was some days employed continuously, all but four hours one day, five hours the next and three and a half the next. The last trip was lengthened by reason of an order to return, but before returning the crew inquired by telegraph if they would be paid extra for the extra run, and on being informed that they would they undertook it. It was optional whether or not they made the run, there being no penalty for refusal. At about 2 A. M. Dec. 13, he fell asleep at his post and ran into the first section of the train of which his was the second section and was killed. Before he reached the place of the accident he was awakened by his fireman and conductor and warned to look out. It was the duty of the flagman of the first section to warn any train coming, but no warning was given.

Plaintiff offered to prove that the crew was so overworked that they became exhausted and all went to sleep. Rejected and bill sealed. [3]

An expert was called to prove how long an engineer could run an engine and not be incapacitated from doing his duty to his employer and himself. Rejected and bill sealed. [10]

*528The court entered a nonsuit and refused to take it off. Plain tiff appealed.

Errors assigned, inter alia, were (2) refusal to take off non suit, (3, 10) rulings on evidence, quoting bills of exceptions.

J. W. Gillespie and S. B. Boyer, with them J. T. Baker, for appellant.

Erwin M. Beale and Gavin W. Hart, not heard, for appellee.

July 13, 1892.