253 Pa. 575 | Pa. | 1916
Opinion by
Plaintiff was employed by defendant as engineer of its plant for the manufacture of artificial ice. It was his duty inter alia to oil the engine and machinery and in so doing to fill with oil a cup located some seven feet above the floor, to reach which it was customary for the engineer to stand with one foot on the top or cap of the grease box, which cap was an oval iron surface about fifteen inches in diameter and about two and one-half feet above the floor. At the same time the other foot rested on an iron frame close to said cap, as we understand the facts. Near to and below this cap was the main crank shaft which made eighty revolutions per minute.
While performing that duty on the morning of August 19,1912, plaintiff’s foot slipped from said iron grease box and was badly crushed by the pin of said crank shaft. So far as appears defendant had provided no other method of filling said cup with oil, and defendant’s foreman had instructed plaintiff to do it in that manner. Plaintiff was an educated and experienced engineer, had held this position with defendant three weeks, testified that he knew it was dangerous to oil the engine in that manner and that he was a little afraid at the time.' Oil and grease had accumulated on the floor and about the engine and had covered and saturated plaintiff’s shoes making them very slippery; of all of which he had full knowledge before the accident, He made no request to be given any different method of filling said cup with oil, and did not take the precaution of stopping the engine before so doing, although it was under his control. No ope else was present at the time of the accident, and he
Plaintiff’s statement of claim as originally filed was practically a common law action for negligence, but, at the trial more than two years after the accident, he sought to amend the statement so as to charge the de» fendant with negligence by reason of alleged failure to guard the crank shaft as required by the Act of May 2, 1905, P. L. 352, although said statement had failed to aver facts sufficient to bring the case within the act. This amendment the trial court refused and rejected evidence offered on that branch of the case. At the close of plaintiff’s evidence a compulsory nonsuit was granted on the ground of contributory negligence.
In our opinion the learned trial judge was right both as to the amendment and the nonsuit, and his conclusions are supported by the authorities to which he refers.
After the statute of limitations has run a plaintiff cannot by amendment shift his ground of complaint, introduce a new cause of action, cure a fatal defect in the pleadings, change his cause from a common law to a statutory proceeding, or deprive the defendant of any valuable right: Mahoney v. Park Steel Co., 217 Pa. 20; Martin v. Pittsburgh Rys. Co., 227 Pa. 18; Allen v. Tuscarora Val. R. R. Co., 229 Pa. 97.
True, under the Act of 1905 the rule of assumption of risk does not apply: Fegley v. Lycoming Rubber Co., 231 Pa. 446; Amiano v. Jofies & Laughlin Steel Co., 233 Pa. 523. But it does apply here as the record does not present a case within that act. And the amendment asked for would have deprived defendant of a valuable right, to wit, the right of setting up that defense, which could not be done after the statute of limitations had become a bar.
Plaintiff was a licensed engineer with several years’ practical experience. He knew the machinery and appliances with which he was working and the manner of doing the work; and better than any one else the slip
“Where risks incidental to employment, which are quite as well understood by the employee as by the employer, and from his familiarity with such risks such employee is equally able to measure the danger with his employer, no liability will attach to the employer for injuries sustained by the employee in consequence of exposure to such risks”: Dellasala v. Josephine Furnace & Coke Co., 242 Pa. 591.
Where an employee continues to work at a place he knows to be dangerous, and voluntarily takes the chances of being injured, he cannot hold Ms employer liable for the consequences of his rashness: Ignash v. Murphy, Cook & Co., 249 Pa. 223. The machinery being under plaintiff’s control it was his duty under the circumstances to have stopped the engine before attempting to oil it, as he knew it was dangerous to do so while it was in motion; and this rule applies although the machine was not guarded: Barrientos v. Brennan, 249 Pa. 231. In Best v. Williamsport Staple Company, 218 Pa. 202, this court say:
“Whether the absence of a guard was negligence in the defendant, or whether it was the proximate cause of the injury, need not be discussed. The plaintiff’s action in attempting to clean the rolls while they were in motion was an unnecessary and voluntary exposure to manifest danger, for the consequences of which his own negligence is alone responsible.”
A plaintiff is chargeable with his own - contributory negligence even where the defendant has failed to provide the guards required by statute: Solt v. Williamsport Radiator Co., 231 Pa. 585. So had the action been brought under the statute it would not have changed the result. TMs is not the case of an ordinary workman who goes into a place of danger at the order of the foreman and relying upon his judgment. Here the facts were not
The assignments of error are overruled and the judgment is affirmed.