254 Pa. 131 | Pa. | 1916
Opinion by
At the time the plaintiff received his injury he was in the employ of the defendants’ firm as night Avatchman, and had been so employed for six or seven months before the accident occurred. The firm was engaged in the furniture upholstering business in the City of Philadelphia and occupied a building of several stories in which was installed an elevator. Between two and three o’clock on Monday, 20th February 1911, the plaintiff Avhile making his rounds through the building with the
As we view the case the open gate was but a transitory danger, and the accident can only be referred to the negligence of some fellow employee in leaving the gate open. It is not required of an employer that in order to avoid liability for accidents occurring to his workmen through the negligence of a fellow workman, he must follow and observe the details of each man’s work. The law does not impose liability on an employer for consequences of a place of work made dangerous only by the carelessness or neglect of fellow servants, or for the negligent manner in which they use the materials and conveniences furnished them for the work; nor does it impose liability where the' danger is merely transitory: Miller v. American Bridge Co., 216 Pa. 559; Eddleman v. Penna. Co., 223 Pa. 318. The case discloses no liability at common law. What is relied upon as showing liability is the Act of April 25, 1903, P. L. 304, entitled “An Act to further regulate the construction, maintenance and inspection of buildings and party walls in cities of the first class.” The fourth section of this act provides that “In every building now existing, in which is an elevator, dumb waiter, interior light or vent shaft, hoistway, hatchway, chute, well hole or shaft of any description, not enclosed in walls constructed and arranged as required by this act, the openings thereof, through and upon each floor of said building, shall be provided with and protected by a substantial guard or vertical enclosure and gate or gates or with such good and sufficient trap doors, or both, as may be directed and approved by the Bureau of Building Inspection. Such guards or enclosure gates shall' be kept closed at all times when not in actual use, and trap doors shall be closed at the close of the business each day, by the occupant or occupants of ithe building having the- use or control of the same.” The effect to be given this act was fully considered and determined by this court in Drake v. Fenton, 237 Pa. 8.
Even under the Act of April 25,1903, it is essential to a recovery that plaintiff’s case should show negligence on part of the defendant, and that such negligence was the proximate cause of the accident. In this case it fell short in both particulars. Drake v. Fenton, supra, is authority for inferring negligence from the fact that the gate was open at the time the elevator was not being used; but whose? In that case there was abundant evidence apart from the open gate to support the inference that the negligence was that of the defendant himself. Here there was absolutely nothing to connect the defendants or any of them with the fact that the gate was
The judgment is reversed and judgment is now entered for defendant.