The opinion of the court was delivered by: BYERS
Motions were made to set aside plaintiff's verdict upon the usual grounds, and for a directed verdict for defendant, as to both of which decision was reserved, on November 1, 1940.
The motion will be granted to set aside, and a new trial will be ordered, because I am satisfied that justice so requires. The assertion of negligence made in the complaint and the bill of particulars is that the defendant's tender attached to engine 93 was carelessly and negligently overloaded on the date of plaintiff's injury, December 4, 1939.
That the plaintiff, who was a fireman attached to that engine, was negligently ordered to trim the coal on the tender when the defendant knew that it was dangerous and unsafe for him to do so; that the defendant failed to give him any warning of the dangerous and unsafe condition so created, and that it failed to give him a safe place to work. That the defendant's negligence was the sole cause of plaintiff's injury.
As amplified by the bill of particulars, these charges are that the overloading created a dangerous condition and that, as the plaintiff began to trim the coal, it moved, tilted and shifted, and he fell off the tender and was injured, because he was unable to obtain a firm foothold. And that the defendant failed to give him warning of the said unsafe condition.
Thus the plaintiff's theory of his cause was plainly and unmistakably announced, and upon it the case went to trial.
The plaintiff's own testimony on crossexamination completely repudiated the assertion of overloading, thus:
"Q. There was enough room for the coal you had on the tender? A. Plenty of room."
By the time this testimony appeared, the plaintiff's case had gone in on a wholly different theory, and if the court had been alert to grasp the full significance of the alteration in theory, which unfortunately he was not, appropriate action would have been taken to send the case back to the calendar at that time.
This engine and the tender were taken over at about 11 a.m. by Miller, the engineman, and Jones, the fireman, at or near the ash-pit in the defendant's freight yard at Columbia (about 28 miles from Harrisburg, Pennsylvania), on the day in question.
A hostler had not been on duty from 10 o'clock that morning, for some reason which does not appear. It would have been for him to see that coal, sand, water, etc., were supplied so that the engine should be ready for service at 12 noon. The fact was that the tender had but a half supply of coal, and hence the engine crew had to attend to the deficiency. At about 11:15 a.m. they boarded the engine, which was then moved forward to the overhead structure whence three loads of coal were dumped into the tender by the engine preparer Thomas, whose task that was.
The only important question in the case is as to how that was done; whether all in one place in the tender, creating a peak that was excessively high; or in three places, about 2 feet or so apart, creating three cones or peaks which would be only moderately above the sides of the tender.
The plaintiff testified to the former process, the dumping in "the same spot", so that as to the pile of coal so created "I would say it was around 6 to 8 feet" above the sides of the tender.
The testimony of Miller and Thomas was to contrary, namely, that the engine was backed between the first and second, and the second and third dumpings, so that ...