38 Pa. Super. 93 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff while in the service of the defendant operating a finishing machine used in the manufacture of metal drip pans was injured. His allegation of negligence is based on the grounds that the machine was defective, and known to be so by the defendant, that the existence of the dangerous defect was not obvious to him and that he received from the defendant no sufficient instructions. The machine and its mode of operation, when in proper working order, are described in the plaintiff’s statement of claim and the defendant’s bill of particulars substantially as follows: There is a mold in which the pan is set by the workman after it has been shaped by another press, and
The next question to be considered is whether the court would have been warranted in charging the jury that under the evidence the rule as to assumption of risk applied and barred recovery by the plaintiff. No well-considered statement of that rule goes farther than to declare that by contracting for the performance of hazardous duties the employee assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to observe. It was by the application of this principle to the facts of the cases cited in the appellant’s brief that the decisions were reached. The question we have to determine is whether it was the province of the court to instruct the jury that under the evidence in this case the principle must necessarily conclude the plaintiff. The plaintiff was forty-five
Being asked what instructions he received from the foreman of the gang at the time he was put to work, he testified: “Nothing more than he took a couple or three pans, put it through the press and says, 'that is what I want you to do; the press will work when you tramp the treadle but it won’t without, and when you tramp the treadle,’ he says, 'don’t put your fingers under there;’ that is all the instructions he gave me.” The foreman’s testimony was to the effect that he ran a few pans through the machine to show the plaintiff how it worked and warned him to keep his mind on his work and not to put his foot on the treadle when his fingers were under the press. Whether the plaintiff’s version or that of the foreman be adopted as the correct one, it is apparent that the plaintiff was not warned of the dangerous latent defect, that, according to the verdict of the jury, was the efficient cause of the plaintiff’s injury.
In Patterson v. Harrisburg Trust Co., 211 Pa. 173, Mr. Justice Fell, speaking of a machine which apparently started automatically and injured the plaintiff who was a workman, said: “What caused the automatic starting of the machine was not shown further than that it was probably due to the variation of air pressure on the valves. It was shown that the self-action
The argument is that the plaintiff cannot set up the insufficiency of the instructions as ground of recovery, because the first day of his employment he learned of the danger from his own experience and continued at work. This contention is based on the following extract from the plaintiff’s testimony: “Q. Now, did it come down on you before? A. Yes, sir, the first day I worked there about two hours after I went to work the machine came down while I was taking the pan out, I spoiled the pan; the machinist was standing directly behind me and he came over and fixed it and fixed it up, and he says ‘you tramped the treadle,’ well, I didn’t — I never had worked the machine around enough and long enough to know whether I had tramped the treadle or not, but I took it for granted that I did when they said that the machine was perfectly safe until the treadle was tramped and I went — Q. At that time had you any knowledge of having tramped the treadle as he stated you had? A. No, sir, I didn’t. I didn’t think I did. Q. Can you state whether you did or not? A. Well, I would say I didn’t, but they impressed on me that I had; I hadn’t worked the machine long enough to argue the case with them and I took it for
After a review of the whole case we conclude that it was clearly one for the jury and that it was submitted in a manner that carefully guarded the defendant’s rights.
All the assignments of error are overruled and the judgment is affirmed.