256 Pa. 451 | Pa. | 1917
Opinion by
This is an action of trespass to recover damages for injuries which the plaintiff alleges he sustained by reason of the defendant’s negligence.
The following facts appear in the defendant’s history of the case: The defendant owned and operated a woolen mill in the City of Bristol, Pennsylvania, in which the plaintiff was employed on September 14, 1914. He worked on a machine constructed and operated on the principle of the ordinary domestic clothes-wringer. After passing through a wash of soap and water, the wool passes between two rollers which squeeze out the water. The upper roller is fourteen inches in diameter, and the lower roller is nine inches in diameter. These rollers meet or mesh at a point forty-one inches from the floor. In order to keep the steel of the rollers from coming in contact with or cutting the wool which
The Act of 1905 provides (Sec. 11), inter alia, that “all......set screws......and machinery of every description shall be properly guarded.” The plaintiff’s statement avers “that said machine and rollers were not properly guarded and safeguarded as required by la\v and the same and the appliances about the same were out of repair and were in a dangerous, unsafe and defective condition.” This is the negligence complained of and which, the plaintiff alleges, resulted in his injuries. The defendant denied the right of the plaintiff to recover for
We think the evidence was sufficient to justify the court in submitting to the jury the question of the defendant’s negligence. The averment in the statement is sufficiently comprehensive to include the failure to guard the set screw. It is conceded that the screw was not' guarded, but the defendant claims that the Act of 1905 applies only to set screws in revolving machinery. The answer to that contention is found in the act itself which requires all set screws to be properly guarded. ■ The act makes no distinction between set screws in stationary or revolving machinery. The present case is a good illustration of the danger of set screws in stationary machinery. The jury was fully warranted in giving credence to the plaintiff’s story that his injuries resulted from his coat sleeve being caught in the set screw which prevented him from withdrawing his hand from the'rollers.
It is contended by the defendant that, under the undisputed testimony, it was not practicable to guard the set screws or rollers, and that the court, therefore, should have ruled as a matter of law that the defendant was not negligent in failing to guard them. It is true that the defendant called three witnesses who testified that rcill'ers on machines of this character could not be guarded and the machine operated. This testimony, however,
There is no ground for the defendant’s contention that the set screw did not cause or contribute to the plaintiff’s injury or whs not, in any way, the cause of his hand being caught in the rollers. The plaintiff testified positively that the’ sleeve of his coat was caught on the screw and prevented him from withdrawing his hand from the rollers and extricating it after it was caught by the rollers. He said: “Q. Caught on what? A. On this set screw. And I could not get my hand either way at all, and it forced my hand in, and it was forcing my hand in all the time, and when I gave the first holler the man at the front stopped the machine off. ......Q. How did the accident happen? A. As I was putting my arm with the end of the burlaping down between the rollers, in between the guide bar, my shirt sleeve caught on the set screw, and it fastened it tight
It is claimed by the defendant that the plaintiff’s injuries resulted from his own negligence in n,ot standing on the floor instead of the brake rod while attempting to wrap the roller and by inserting his hand above instead of below the rod in front of the rollers. The plaintiff denies that either of these acts was negligent, and alleges that by reason of his diminutive height he was compelled to stand on the rod to perform the service and that he was obeying the instructions of the defendant’s foreman when he inserted his hand above the rod. He also contends that he was performing this service in the usual and customary way. We have examined the testimony bearing on this branch of the case and are not convinced that it so clearly supports the contention of the defendant that the court could have so declared as a matter of law; on the contrary, we think it warrants the conclusion of the jury that the acts complained of by the defendant were not negligent and did not contribute to the plaintiff’s injuries. '
The accident resulting in the plaintiff’s injuries occurred on the evening of September 14,1914. Hogarth’s arm was crushed and subsequently amputated. The operation was performed in the hospital on September 20th. Three days thereafter and while Hogarth was in very poor physical condition, Joseph P. Hill, the liability adjuster of the defendant, called at the hospital to discuss terms of settlement. At this time Hill procured from Hogarth a statement as to the manner in which the accident occurred. Hogarth signed the statement by his mark, and it is witnessed by Hill. The latter saw Hogarth again before he left the hospital. On October 13th, less than a month after the man was injured and
The plaintiff and his wife tell a different story from that told by the defendant’s liability adjuster and assistant superintendent. Hogarth testifies that Hill called on him at the hospital on September 23d, and he told the latter he was then suffering great pain. Hill did
We have given substantially the material part of the testimony of both parties on this branch of the case, and it is clear, we think, that the learned court was right in submitting it to the jury for them to determine whether the alleged release was procured by fraudulent means and was, therefore, void. The learned counsel for the appellant assumes that the purpose of this evidence was to reform the instrument in question, and that, therefore, it must fail of its purpose unless it is clear, precise and indubitable. We concede if that had been the purpose of the testimony the standard suggested would be correct in a case to which the principle is applicable. This is shown by the numerous authorities cited in the appellant’s paper book. The plaintiff here, however, does not attempt to reform, alter or contradict the alleged release so as to conform to a different state of facts, but alleges that the release was obtained by misrepresentation and fraud, that he never executed the re
There is no merit in the contention that the retention of the money received from the defendant by the plaintiff barred his right of recovery. As the jury has found
The judgment is affirmed.