221 Pa. 72 | Pa. | 1908
Opinion by
This is a very close case and the meager facts disclosed on the trial do not take it out of the realm of doubt. There was but one witness produced and examined at the trial, and his examination on either side was quite unsatisfactory in developing the material facts upon which the case should turn.
The reason of the learned trial judge for directing a non-suit was stated by him as follows: “ The mere happening of an accident to one working about machinery does not prove negligence on the part of the employer or that the appliance was defective; nor does a promise of the employer, or person representing him, that alterations or changes will be made to
The offers of evidence, the refusal of which is the subject of the third, fourth and fifth assignments of error, do not disclose clearly their purpose, but we assume that the purpose of the offers was to show that the platform in question was not con
The plaintiff had been engaged at this work long enough to know the dangers, if any, arising from a defective or negligently constructed platform, and it may be that he assumed the risk of those dangers. But he contends that he rebutted the presumption that he assumed such risk by showing that he notified his employer of the dangerous condition of the platform and was assured that the danger would be removed, and that he remained at his work solely by reason of this assurance. lie claims that the danger to which he was subjected was not so imminent and immediate as to require him to refuse to continue his work and, therefore, that the promise of his employer to remove the danger justified him in not at once quitting work. If the evidence was ■ sufficient to establish the facts as claimed by the plaintiff his case was brought within the doctrine of Reese v. Clark, 198 Pa. 312; Webster v. Coal & Coke Company, 201 Pa. 278, and Foster v. National Steel Company, 216 Pa. 279.
The plaintiff was injured when he was attempting to step on
The question involved in the case is whether the defendant furnished a reasonably safe place for the plaintiff to perform the work for which he was employed. Of course, in determining this question there are several others which will incidentally arise, but we need not now suggest or consider them in the absence of the evidence which will be given -on the trial. It may be well, however, to suggest that the facts should be more fully developed than in the former trial, so that the merits of the case may be intelligently passed upon, not only by the jury, but by the court.
The first assignment of error is sustained, and the judgment is reversed with a procedendo.