APPEAL by the defendant, the Pennsylvania Railroad Company, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 17th day of August, 1910, setting aside the verdict of a jury in favor of the defendant and directing a new trial.
Frank Rumsey and H. J. Adams, for the appellant.
Horace O. Lanza and Frank A. Miceli, for the respondent.
The action is in negligence. The plaintiff was employed as one of a section gang by the defendant, and while engaged in his duties south of the village of East Aurora the handcar on which he was working was run into by a backing freight train. He and his fellow-workmen saw the train slowly approaching and the foreman, apprehending a collision, told the men to jump from the car platform, which was only two feet above the ground. All did as directed, and the plaintiff fell under the handcar and was run over by it and also by the caboose of the backing train, and his right leg was crushed and thereafter amputated above the knee. The trial judge very fairly submitted to the jury the questions of the negligence of the defendant and plaintiff's contributory negligence, and they have been determined adversely to the plaintiff, and the verdict is sustained by sufficient evidence.
The trial judge set aside the verdict as matter of law in order that another question in the case might receive judicial construction by the appellate courts. The memorandum filed contained the following: 'It seems to be conceded by counsel on either side that the questions here raised have not been passed upon by any of the Appellate Courts of the State, and that contrary views have been expressed by the courts in other States where practically the same questions were involved, and that there are at least four other cases having passed the initial court are now awaiting the decision in this one by the Appellate Division. Under these circumstances the rights of the parties to this case would be better served by the
granting of this motion and thereby placing the burden upon the defendant company of the appeal.'
In February, 1886, the defendant, in connection with associated railroad companies, organized a voluntary relief fund society for its employees. Any employee under the age of forty-five years, upon passing a satisfactory physical examination, is permitted to become a member of this organization. An agreement, in writing, is entered into with him whereby he agrees that a stipulated sum is to be deducted monthly from his wages, and is to be his contribution to the fund. The members are divided into classes, and the sum paid by any member determines the class to which he belongs, and the distribution of moneys is also graded and regulated. A book of rules is given to each member, clearly defining the plan and scope of the organization, including the benefits to be received by him in case either of sickness or personal injuries while in the employ of the defendant. The monthly sum to be paid is stated in the agreement, and the amounts to be received by the member are definitely set forth in the book of regulations given to the member at the time of the execution of the agreement. The plaintiff, in case of permanent injury, in pursuance of his agreement, was entitled to fifty cents a day for the first fifty-two weeks, and thereafter twenty-five cents a day.
Section 45 of the regulations contained this provision: 'If the injury is of a permanent character benefits will cease when the member shall be declared by the Medical Examiner as able to earn a livelihood in an employment suited to his capacity.' Section 5 of the regulations provides as follows: 'The Company will take general charge of the Department; guarantee the fulfillment of the obligations assumed by it in conformity with the regulations from time to time established; take charge of the funds, and be responsible for their safe keeping; supply the necessary facilities for conducting the business of the Department, and pay all the operating expenses thereof.'
An advisory committee is also provided for, consisting of certain officers of the defendant, and of members of the relief fund chosen by ballot by the contributing employees. This committee is vested with 'general supervision of the operations of the Department, and see that they are conducted in accordance with the regulations.'
The membership of the relief fund is composed of from 100,000 to 110,000 employees of the defendant, and the aggregate of their contributions to the fund in 1907 was over $700,000. More than three-fourths of the entire fund was expended in payment of sick ...