213 Pa. 145 | Pa. | 1906
Opinion by
The Harbison-Walker Company is engaged in the manufacture of fire brick and owns works at Blandburg, Cambria county, Pa. During the process of manufacture at these works, the fire clay, after being ground, was placed in circular pans for the purpose of mixing. The mixed clay was formerly shoveled out of the pans by hand, and placed upon trucks to be conveyed to the molds. But later, an improvement was introduced, called a “pan emptier” to carry the mortar from the pans to the trucks. This emptier consisted of a frame, carrying a revolving belt, passing around a roller at each end. The belt was operated by cogwheels at the upper end. Three pans were in use by the defendant, at this place, each pan having an emptier. The plaintiff was a pan tender; and was in charge of pan No. 3. . The cogwheels upon the emptier at
The plaintiff had worked for years about the premises and was familiar with the machinery. He testified that he considered the arrangement of the cogwheels on this particular emptier, as dangerous; and that he had complained of it to the master mechanic. In reply he was told by the master mechanic that he would like to change the position of the cogwheels but that the superintendent would not give him time to do so. But he added “ I will change them on Sunday.” The change was not made then, and the plaintiff testifies that he thereafter called the attention of tbe master mechanic to the condition of the cogs repeatedly; as often as three or four times a week during a period of some six weeks, and that the answer was that the change would be made on Sunday, when the machinery was idle. Finally, on Monday, April 29, 1901, the plaintiff again called attention to the fact that the change had not been made, and again the promise was renewed, that the cogwheels would be changed the following Sunday. The plaintiff continued to work during that week. On the succeeding Monday morning, May 6, he went to the mill at a very early hour, about three o’clock in the morning, as was his duty, and he then found that the promise had again been broken, and no change in the position of the cogwheels upon the emptier had been made. He began work, however, and during the manipulation of the machinery in the effort to get it started, the sleeve of his right arm caught in the cogs, his arm was drawn in, and so badly mangled, that amputation was necessary.
This action was brought to recover for the damages thus caused. Upon the trial, a compulsory nonsuit was entered, upon the ground that the plaintiff by continuing to work with
Under the peculiar circumstances of this case, we feel impelled to hold that in spite of the plaintiff’s knowledge that the fulfillment of the promise had again been delayed, it was still an open question whether he was not justified in continuing to perform his duties. ■ Had but one promise been given, and that one broken ; had there been no renewals of the assurance previously given, from time to time, the case would be different. Certainly it was within the power of the master to ■take upon himself the risk of the work, and beyond doubt, the effect of the promise was to assume that risk, during the period
The assignment of error to the refusal to take off the compulsory nonsuit is sustained. The judgment of the court below is reversed, and a writ of procedendo is awarded.