214 Pa. 282 | Pa. | 1906
Opinion by
The plaintiff was employed as a brick molder in the works of the defendant company. He worked at a table in the mixing room which was near the machinery by which the material used to manufacture the bricks was broken and ground. This consisted of a pan set on the floor in which heavy rollers were revolved by means of a vertical shaft in the center of the pan. The shaft was attached to a horizontal wheel some eight feet from the floor, and this wheel weighed over 1,900 pounds and
On March 27, 1903, while the machinery was in operation, plaintiff noticed that sparks were flying from the crown wheel and also that it was making a screeching noise. He had noticed the sparks the afternoon before, and had then spoken to his brother, Edwin Hughes, who worked in the same room, about it; and the latter testified that “ The machinery was not working quite in order.” Both the plaintiff and his brother testified that shortly after Mr. Griffith, the superintendent of the mill, came in, and they both called his attention to the sparks flying from the wheel, and the plaintiff said, “ That wheel there did not look quite right to me; ” and that he did not care about working at the pan. Griffith told him to go ahead; that there was no danger, and that he would have it fixed. Two other witnesses, also workmen in the mill, William Smith and Geoi-ge A. Rice, testified that they saw fire flying from the cogs of the wheel both on March 27, and on the previous afternoon. After the alleged conversation with Griffith, the superintendent, plaintiff went back to his table and continued to work. In about half an hour, the crown wheel broke into three pieces, one of which fell upon his leg inflicting serious and permanent injuries.
There was no positive evidence as to the cause of the breaking of the wheel. Edwin Hughes testified that immediately after the accident the upright shaft on which the cogwheel worked was out of plumb. He also said that the cogs in the crown wheel were cut down to about a half inch all the way around — “ just tapered to a sharp point, and sometimes knocked off. They were worn right down in one another.” The witness Smith testified that after the accident some of the cogs on the broken wheel were all ripped off. From this testimony it was argued that the breaking of the wheel was caused by the shaft being out of plumb which resulted in increasing the friction upon the cogs. There was no direct testimony that the shaft was out of plumb befdre the accident, but the evidence was such that the jury might infer that it
The court below reserved the question of law, “ Has any evidence been submitted which entitled the plaintiff to recover ? ” The jury found for the plaintiff, and the court subsequently refused to enter judgment for the defendant on the point of law reserved, and did enter judgment for the plaintiff on the verdict. This action is assigned as error; as is also the refusal of the court to give binding instructions for the defendant.
If the evidence of sparks from the machine were the only thing in the case, there should have been no submission to the jury, as the mere absence of oil, or the presence of particles of dust will cause sparks to fly, as was shown by uncontradicted evidence. But there was much more in the case than this. The plaintiff testified that the wheel was making a screeching noise on the day of the accident, as well as emitting sparks ; and he complained to the defendant’s superintendent that lie did not like the looks of things, and was averse to continuing his work at that point. . In reply, the superintendent told the plaintiff to go ahead with his work, that there was no danger, and that he would have it fixed.
In view of the evidence of the screeching noise, and the fact that so many witnesses noticed the fire flying, it would seem that there was more friction in the working of the machinery than usual, and that it may have indicated more serious trouble than the mere lack of oil or the presence of dust. We do not feel that we can say as a matter of law that the jury were not justified, in finding that the defendant was negligent in failing
A true statement of the rule applicable to such circumstances is, we think, set forth in 2 Labatt on Master and Servant, sec. 835, as follows : “ A servant is not entitled to have his case submitted to the jury, unless he introduces, in addition to the fact of the occurrence of the accident, some specific testimony which fairly tends to show that the employer was guilty of negligence. In the absence of such testimony the case must obviously fall within the operation of the principle that an action is not maintainable where the plaintiff’s evidence is equally consistent with the absence or with the existence of negligence. This rule, however, does not imply that it is only from direct evidence that the master’s culpability can be inferred. The burden of proof is satisfied by the production of circumstantial evidence.”
As we said in Folk v. Schaeffer, 186 Pa. 253, “ under the circumstances shown by the plaintiff, the burden was thrown on the defendant to show that due care had been used, and in the absence of any explanation the jury might infer want of care.”
There is nothing in the evidence as we view it, to justify any charge of contributory negligence against the plaintiff, so that the instruction of the court in this, respect was not material, and while counsel for plaintiff signified his wish to offer in evidence the Carlisle tables, yet it does not appear that they were used in any way, before the jury; therefore, the complaint that the court failed to point out their proper office, and the limitations upon their use, is not well founded. We are satisfied that upon the whole record, this case was forthe jury, and
The assignments of error are overruled and the judgment is affirmed.
