Clough v. Hoffman, No. 158

No. 158 | Pa. | Mar 3, 1890

Opinion,

Mr. Justice Williams:

This case was here one year ago, and is reported in 124 Pa. 505" court="Pa." date_filed="1889-03-11" href="https://app.midpage.ai/document/hoffman-v-clough-6239207?utm_source=webapp" opinion_id="6239207">124 Pa. 505. The questions to which our attention was then called are not now before us, but the plaintiff in error insists that there was no sufficient evidence of negligence to justify the submission of his responsibility, for the accident complained of, to the jury.

This question is raised by the first point of the defendant below, which asked the court to instruct the jury that, “ There being no evidence in this case that the lid of the well was left in an unsafe condition at the time of the accident, by the defendant, nor that it was left in an unsafe condition by any one for such a length of time before the accident that the defendant ought to have known its condition, the defendant is guilty of no negligence, and the verdict should be in his favor.” To this the learned judge responded in these words: “ Now, gentlemen, to affirm this point would be to give you a binding instruction to find for the defendant. I decline to do that. I leave it for you to say whether the evidence is sufficient to sustain the assumed facts mentioned in this point. If you find that they are, it is affirmed, and the evidence is for you.” The assumed facts of which the prayer of the point was predicated were two in number: First, that there was no evidence showing that the lid of the well was left in an unsafe condition at the time of the accident, by the defendant; second, that there was no evidence showing it to have been in an unsafe condition long enough before the accident to bring notice of its condition home to the defendant. Was there any evidence on these points ?

The opening in the floor was shown to have been made as a means of access to a well under the building. There had been a pump in it at one time. This had been removed, and a trapdoor or lid made to cover the opening, with cleats on the under side just fitting into the hole in the floor, to hold the lid in place. When the lid was in place it was as strong as any part of the floor, and would sustain the weight of persons stepping or standing on it, without danger. The directions of the defendant were to keep this opening closed by means of the lid which he had provided. Finding his employees careless in complying with his directions, he caused the lid to be nailed to the floor. It was afterwards forced off, and'the opening again used as a means of access to the well, by lifting off the cover, drawing water for drinking, and then replacing the cover. From this glance at the testimony, it is clear that there was no evidence that the lid of the well was left in an unsafe condition by the defendant. He had provided a cover that was strong, that could not be moved except by prying or lifting it out of its place designedly, and he had given general and repeated directions that it should be kept in its place. He had even gone the length of having it nailed to the floor on one or two occasions, thus emphasizing his desire to guard against the possibility of accident. As to the first of the positions of the point, therefore, there was no evidence to submit to the jury.

Turning, now, to the second, we find no testimony showing that the cover was not in place on the morning of the accident, unless it can be gathered from that of the plaintiff himself. He says: “ I just put my box of tools down, and stepped on the door, but I didn’t know there was a door there at the time. I went down as far as this arm, and then I grabbed the spool with this hand.” From this it would seem probable that some one had removed the lid to get water, and had gone away, leaving it lying loosely over the hole, instead of fitting it into its place. This may have taken place, so far as the evidence shows, just before the plaintiff came upon the scene, and without even a possibility that the defendant could have had his attention drawn to the subject. The second fact or position assumed in the point was therefore also correct, and the legal conclusion that followed should have been affirmed.

Negligence ought not to be imputed to an employer because he is able to pay damages, nor because the injury to his employee is one that excites our sympathy. It must be proved like any other cause of action, and unless there is more than a scintilla of proof, the question should not be submitted to a jury. Whether the unfortunate injury to the plaintiff is attributable to his own negligence, or to that of a co-employee, is a question of no practical moment, inasmuch as the defendant can be held liable only for his own failure in duty towards his employees. The learned judge of the court below seems to have been much of this opinion, but to have regarded the award of a venire facias de novo, when this case was here before, as indicating" the judgment of this court that there was evidence to go to a jury on the question of the employer’s negligence. But the questions then brought to our attention were, first, whether the danger of falling into the well was one of the risks incident to the plaintiff’s employment; and, second, whether the defendant was liable for the injury, if it resulted from the negligence of a co-employee. These were therefore the only questions upon which an opinion was expressed at that time. Now, however, our attention is drawn to the state of the evidence by the point and answer we have considered, and, after examination, we are satisfied that there was no proof of any act of omission or of commission by the defendant in disregard of his duty as an employer. There was nothing for a jury to pass upon, and the point embodied in the fourth assignment of error should have been affirmed.

Judgment reversed.

On March 17,1890, a motion for a re-argument was refused.