Iron-Ship Building Works v. Nuttall, 119 Pa. 149

Iron-Ship Building Works v. Nuttall

119 Pa. 149 | Pa. | 1888

.Opinion,

Mr. Justice Williams:

The defendant in error, who was plaintiff below, was in the employment of the ship building and engine works as a carpenter. While so employed he was requested, on the day of the accident to assist at the circular saw, by carrying the lumber that was to be cut up preparatory to slitting, to the right of the sawyer where -it could be easily reached by him. He had carried thirty or forty pieces and was passing around with another when a stick that was upon the table got behind the saw and was caught by it and thrown violently backward, *158hitting Nuttall and destroying one eye. This suit was brought to recover damages for the injury so sustained. There is no allegation that the sawyer was not a competent and careful man, nor that the circular saw was not of the pattern and quality in ordinary use, and at the time in good repair. The negligence which the plaintiff imputes to the defendant and for which a recovery was sought and allowed in the court below, is the failure to inform the plaintiff when he was sent to carry the lumber, that a circular saw was a dangerous machine, and the failure to provide the saw with an attachment called a “ spreader.” As to the first of these, it must be remembered that the work Nuttall was asked to do was simply that of a bearer of burdens; work which is done by cheap and unskilled labor. He was a mechanic and had for weeks been working in the same room in which this saw was operated. All that could have been told him by way of warning was, that there was a possibility of injury from a flying stick, but that during many years no such accident had happened in the defendant’s works. That the omission of such a warning to a mechanic under the circumstances of this case, was a failure in duty on the part of the employer is simply preposterous. There is risk and liability to accident in all employments, but the law does not require an employer to protect his employees against the possibility of an accident. He is bound to provide suitable machinery and implements for their use, see that they are in reasonable order, and that the usual precautions against accident are taken. The possibility of accident which lies beyond, is a risk which every mechanic and every laborer takes and must take as incidental to every form of activity.

As to the failure to provide a spreader, the case of the plaintiff is, if possible, more clearly without merit. The testimony shows, that such an attachment is not in general use, and that there is no general agreement among mill owners or practical sawyers that it is a desirable or a useful attachment. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried by this test, the saw of the defendant is such an one as the company had a right to use, because it is such as is commonly used by mill owners ; and it was error to leave to the jury any question of negligence based on the failure to provide a spreader.

*159The first, third, fourth, fifth, and. sixth assignments of error are sustained.

The judgment is reversed.