Diehl v. Lehigh Iron Co.

140 Pa. 487 | Pa. | 1891

Opinion,

Mr. Justice Green:

The learned judge of the court below correctly charged the jury when he said to them: “ I say to you, gentlemen, that Mr. Bortz’s urging the men to go into the stack and work, was not an act of negligence on his part, and does not make the company liable, because the men could go in or not, as they saw fit.” He also correctly said that the defendant company would not be liable upon the theory that the master was present and commanding the dangerous work to be done, at the time of the accident, because Bortz, who represented the master, was not present, and had not been for two hours or more before the accident occurred. But he thought, and so charged the jury, that the question of liability or non-liability of the defendant depended upon this: “Did the defendant company provide and order to be employed in this work an appliance, or a means, which was reasonably safe to be used under the circumstances, or not ? ” and on that issue or question the case was given to the jury.

It is true, the learned judge did also say that the hole had not yet been bored,.and was in fact bored afterwards by the plaintiff, and that he put the cartridge in the hole; and that, if the plaintiff should have known that the cartridge would explode by reason of the great heat in the bottom of the hole, he would be guilty of contributory negligence, and could not recover even although the defendant had been to blame in sending the plaintiff there. And he added: “ And, in fact, under that view of the case, if you find that is the correct view, he would have been guilty of all the negligence appearing in the case, and ought not to recover, because he knew that the dynamite was to be used for the very purpose of exploding and scattering this refuse. He knew that it was to go off, and if, knowing it to be an explosive, which he undoubtedly did know, just as well as Mr. Bortz did, he used it under such circumstances that he ought to have known that it would cause mischief, then he alone is to blame for the resulting injury.” All this was entirely correct; and if the learned judge had added that it was the uncontradicted evidence of the plaintiff himself that Bortz was not present when the hole was bored, and knew nothing of it, and had not directed that any blast should be put in a hole that was red-hot at the bottom, and that the plaintiff did know all these things, and did put the dynamite blast in the hole, knowing all about its condition, that he thereby assumed all the risks of the consequences and could not recover, and directed a verdict for the defendant, he would have been in exact conformity with the law, as we understand it. But he left to the jury the question whether, if “ Diehl did not know, and had not the means of knowing, that dynamite would explode by being put in a heated place, such as the bottom of this hole evidently was, and that the defendant’s superintendent urged the use of the dynamite just in that way, knowing how hot the place was, and knowing that the holes were to be bored down into the hot mass, and insisted on the dynamite being used, and the superintendent ought to have known, considering the circumstances, — that is, the business he was performing there as manager, — if he ought to have known that it was unsafe, and he still urged and insisted upon the use of the dynamite, then it might be said that he provided and directed the use of a means which was dangerous, and, injury ensuing to the workman, if it is found that the workman was not to blame, then there may be a recovery.” In leaving this question to the jury, and in that way, we think there was error; first, because it was proved by the plaintiff himself that he had been using dynamite for a number of blasts and during several days before this particular blast was put off, and therefore could not be said to be ignorant of its explosive quality under the influence of heat; and, secondly, because there was no evidence that the superintendent had knowledge of this particular hole, or the condition it was in, or that he had given any direction to put the dynamite either in that hole, or in any hole presenting similar conditions. These' are matters as to which the plaintiff assumed all the risks, and upon the clearest authority he alone assumed the entire responsibility of putting off the blast in the exact conditions existing at the time.

In Green St. Ry. Co. v. Bresmer, 97 Pa. 108, we said: “A servant, however, assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of bis master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself.....No duty was imposed on the company to inform him of what he so well knew, nor to forbid his grooming the mare. He voluntarily assumed the risk, and continued to expose himself to a well-known danger. He cannot now cast on his employer a liability for the injury which he thereby suffered. It matters not that the master did know the vicious habits of the mare. It is the knowledge of the servant which withholds from him a right of action.” In Sykes v. Packer, 99 Pa. 465, we said: “An employer does not impliedly guarantee the absolute safety of his employee. In accepting an employment, the latter is assumed to have notice of all patent risks incident thereto, of which he is informed or of which it is his duty to inform himself: Wharton on Neg., § 206. When, therefore, he undertakes hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had the opportunity to ascertain.” In Phila. etc. R. Co. v. Hughes, 119 Pa. 301, we held that if a person specially undertakes to perform a peculiarly perilous employment, by operating knowingly and voluntarily a machine obviously wanting in appliances suitable for safety, he cannot thereafter be heard to charge that the machinery was of a dangerous kind, and wanting in such appliances. Citations need not be enlarged. The principle is very familiar. Other instances of its application will be found in Beittenmiller v. Brewing Co., 22 W. N. 33; Mansfield Co. v. McEnery, 91 Pa. 185; New York R. Co. v. Lyons, 119 Pa. 324, and in many other cases.

On the subject of the plaintiff’s knowledge of the danger, his own testimony furnishes full information. He was asked about his blasting with dynamite in this furnace before the blast that injured him, and said substantially that he commenced work on the Sunday before the Saturday on which the accident happened, and worked on the night shift, and had put off several blasts. “ Q. You set them off on the night before that, and that would be on the 18th? A. Yes. Q. How many blasts did you make that night, do you suppose? A. I could not tell. Q. How many did you usually set off in a night ? A. Sometimes two or three.....Q. Did you blast with dynamite when you blasted ? A. Yes. Q. All the blasting you did in November, 1887, was done with dynamite? A. Yes; all the blasting, as far as I know.....Q. I say all the blasting done by the night shift in November, 1887, at the time this furnace Was being cleaned out, was done by you ? A. I done it until I got hurt.” He then described the process of blasting with dynamite, and said that it was exploded by means of a cap connected with a fuse. “ Q. You light the end of the fuse? A. Yes. Q. And the fuse, I suppose, contains powder? A. Yes. Q. Black powder? A. Yes. Q. And when it is lighted it burns down to the cap? A. It gets to the cap. Q. And anything that will of course explode the cap will explode the dynamite? A. Yes. Q. When this hole was prepared this day for the blast, you saw that it was very hot ? A. I saw that it was hot; yes. Q. The drilling in it had made the drill red-hot, had it not? A. Well, a little; yes, in the bottom.” He further testified that the place where the hole was to be put down in the mass was so hot that boards had to be placed on it, so they could stand on the boards. “ Q. Of course you saw and knew that it was in this condition ? A. I knew that it was in that condition not to use powder in it.” Being recalled for cross-examination he was asked: “ Q. And you knew that the work you were engaged in was a dangerous work? A. Well, in one sense of the word, yes. Q. You saw, of course, as you went down, that this place was very hot? A. Yes; I done as I was told. Q. And it got hotter and hotter, and you knew that you were blasting in a material that was hot ? A. Yes.” He also testified that he put the charge of dynamite in the hole, and that it instantly exploded. The plaintiff’s witness, Jesse Ochs, also testified to the dangerous character of blasting with dynamite in a red-hot substance. “ Q. Do you consider the use of dynamite in a red-hot substance, like salamander, dangerous ? A. I do. If it was not dangerous we would not use it; if it was not a dangerous explosive we wouldn’t need it, wouldn’t use it. .It has got to be a dangerous explosive, or we could not do the execution with it that we want.”

It will be observed, therefore, that the dangerous character of the work was fully established by the plaintiff’s testimony; also that he voluntarily engaged in it; that he had ample opportunity to become acquainted with tbe highly explosive character of the dynamite he was using, and that he put the charge, with his own hands, in a hole that was in a state of intense and dangerous heat. We do not see upon what principle he can be relieved from the consequences of his own voluntary action. Even if he had had orders to put the blast off, in the hole in the condition in which it was, he was under no obligation to obey such orders; but he had none. The superintendent was not there, and knew nothing about the condition of the hole; but the plaintiff knew all about it, and knew the dangerous character of the work. Upon all reason and authority, he was bound by the consequences of his own act and cannot recover. The defendant’s first point should have been affirmed.

Judgment reversed.