Booth v. Stokes, Appeals, Nos. 199 and 200

Appeals, Nos. 199 and 200 | Pa. | May 28, 1913

Opinion by

Mr. Justice Mestrezat,

The plaintiff alleges that the defendant was negligent in not providing a proper guard on a suction pump as required by the Act of May 2, 1905, P. L. 352, and in failing to give proper instructions and warning of danger to him, a young and inexperienced employee. Both questions were submitted to the jury and found for the plaintiff. The learned counsel for the defendant strenuously argues that there was no sufficient evidence to warrant the jury in finding that the gears or cog-wheels of the pump by which the plaintiff was injured were not properly guarded or that he was not properly instructed as to the performance of his duties. We have examined the evidence carefully and cannot agree with the counsel’s contention. In fact, we are inclined to agree with the suggestion of the plaintiff’s counsel that the court could have instructed the jury that the machinery was not properly guarded as required by the Act of 1905. The defendant’s own witnesses so testified. The factory inspector, called by the defendant, testified that the machinery was not safe to an inexperienced man, and that it would be safer if boxed up entirely. William H. Brounell, an operating and erecting engineer in the employ of the defendant and called by him as a witness, also testified that the machinery, as guarded, was dangerous to inexperienced people.

Section 11 of the Act of May 2, 1905, P. L. 352, requires that “all......cogs, gearing,......and machinery of every description shall be properly guarded.” In McCoy v. Wolf Company, 235 Pa. 571" court="Pa." date_filed="1912-03-18" href="https://app.midpage.ai/document/mccoy-v-wolf-co-6251162?utm_source=webapp" opinion_id="6251162">235 Pa. 571, we held that whether in any given case where the evidence is conflicting machinery was properly guarded in contemplation of the Act of 1905 was a question for the jury. It is there said (p. 574): “‘Properly guarded’ is a relative term or expression, and whether the statutory requirement in that respect has been complied with necessarily depends upon the facts of the particular case...... The necessity for an artificial guard depends upon the existence of certain conditions and is a question of fact for the jury.” This is a statutory duty imposed upon the owner or person in charge of the establishment where the machinery is used, and a failure to perform the duty resulting in injury to an employee will render the owner liable. The approval or disapproval of the factory inspector is not the test of the owner’s liability in such cases. The principle which relieves the owner or operator of a coal mine from liability for the negligence of a mining boss has no application in cases of this kind. There, the statute imposes certain duties upon the mining boss who is in charge and control of the mine and whose authority, under the statute, is superior to that of the owner, and for this reason the latter is not held responsible for the former’s negligence. Where an employee is injured by reason of the failure of his employer to properly guard exposed machinery the negligence consists of the disobedience of the employer, and not of the factory inspector, to comply with the statutory requirement. The statute does not place the factory inspector in the management or control of the establishment, or take from the owner his control or management of the plant. The purpose in the appointment of the factory inspector is, as declared by the statute, “to more effectually secure the observance of the provisions of this act.” It is not his duty to provide guards for machinery in any establishment, but to enforce the provisions of the statute which require the owner or person in charge of the establishment to provide such guards. It follows, therefore, that the approval of a guard in any case by a factory inspector is not conclusive as to whether the machinery is properly guarded within the meaning of the statute. The duty rests upon the owner of the establishment, and •when the question is raised it can only be determined by a jury as any other question of fact.

It is true that the employer is relieved from the duty to instruct where the danger is open and obvious and the employee appreciates the danger and knows how to avoid it. It would be futile to require instructions to be given to any employee who is fully informed as to the manner of performing his service and how to avoid its dangers. The law does not require a vain or useless thing. In the present case, however, the employee was an inexperienced youth of seventeen years who had never worked about this pump or one like it, and who was, according to his testimony, unfamiliar with the work or the danger in performing it. Whether under the evidence, the defendant should have instructed the plaintiff was a question for the jury.

It is contended that the plaintiff was guilty of negligence which contributed to his injury, and that, therefore, he cannot recover in this action. We are unable to see how that question could have been withdrawn from the jury. The plaintiff testified: “I rested my hand right on top of the guard, to protect myself from falling on the gear and slipping in the fan pump that was back of me, and leaned front to wipe the part of the pump off. My hand slipped off the guard and got in under the guard and the gear somehow...... I had to lay my hand on the guard to keep from falling on the gear and slipping in the fan pump that was back of me.” There is no evidence in the case that would have warranted the jury in finding that this manner of performing the work which the plaintiff was required to do was negligent, or that the work could have been done in any other or safer way.

We have carefully examined the several assignments and fail to discover any reversible error in the record.

The judgment is affirmed.