Kelliher v. Brown & Co., Appeals, Nos. 51 and 52

Appeals, Nos. 51 and 52 | Pa. | Jan 5, 1914

Opinion by

Me. Justice Mesteezat,

We do not agree with the learned counsel for the appellant that the court below was in error in holding that the defendant was guilty of negligence as a matter of law. The facts were not in dispute, and under the principle laid down in our cases it was the duty of the court to pass upon the question. The proximate cause of the accident was the failure of the defendant company to provide a belt shifter or other proper appliance for the machine at which the plaintiff was working as required by the Factory Act of May 2, 1905, P. L. 352. The eleventh section of that act provides, inter alia, that “the owner or person in charge of an establishment where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys.” The statute is mandatory and the failure to comply with it, resulting in injury to another without the latter’s fault, is actionable negligence. Had there been a proper shifter on the machine, the plaintiff could have stopped it while he was bolting the chute. There was no other reasonable way in which he could stop the machine while he was performing this duty. That it was dangerous to make the attachment while it was in motion is conclusively shown by what happened in this case. It is immaterial that the defendant company had permitted for several years its employees to attach the chute without stopping the machine, in view of the mandatory provisions of the Act of 1905. Had it been equipped with the proper belt shifter and the plaintiff had failed to use it and been injured in attaching the chute without stopping the machine, he would have been guilty of negligence preventing a recovery in the action. The defendant is not in a position to deny the right of the plaintiff to maintain this action on the ground, suggested by it, that the plaintiff could not have stopped the machine in time to prevent the accident. It would have been his duty to have stopped it by shifting the belt before he attempted to attach the chute and, in the absence of evidence showing the contrary, we must presume that he would have performed the duty. At all events, it was incumbent on the defendant to equip the machine with the proper belt shifter and give the plaintiff the means of protecting himself from the injuries he sustained by reason of its default.

The question of the plaintiff’s contributory negligence raised on the trial in the court below was found in his favor by the jury. The only other question in the case was the negligence of the defendant in failing to comply with the Act of 1905 which proximately caused the injury to the plaintiff. That became a question for the court under the undisputed evidence and it properly disposed of it.

The judgment is affirmed.