Montgomery v. Rowe

239 Pa. 321 | Pa. | 1913

Opinion by

Mr. Justice Brown,

When the appellant, a bricklayer in the employ of George Rowe, deceased, went to work on the morning of November 10, 1906, he ascended on an open elevator to the sixth story of a building which his employer was erecting. The employees were in the habit of using this elevator in going to the upper stories , and in descending to the lower ones. After working on the sixth story until the noon hour, the appellant and three fellow workmen prepared to leave the building and return to their homes, as it was Saturday. When the four stepped on the elevator one of them gave the usual signal to the engineer below that workmen were upon it who wished to go down to the first floor. It immediately started downward, with increasing velocity, until it struck the ground with such force that the appellant was- thrown from it and seriously injured.

In presenting his case in the court below the plaintiff showed nothing beyond the mere happening of the accident; but, as his action was against his employer, there was no presumption that the elevator was unsafe or defective. Except in the case of a common carrier the uniform rule is that, where recovery is sought on the ground of the negligence of the defendant, the burden of proof is on the plaintiff, and, in an action against an employer, some specific act of negligence must be shown: Philadelphia & Reading Railroad Company v. Hughes, 119 Pa. 301; Mixter v. Imperial Coal Company, 152 Pa. 395; Spees v. Boggs, 198 Pa. 112; Surles v. Kistler, 202 Pa. 289; Marsh v. Lehigh Valley Railroad Company, 206 Pa. 558; Clark v. Garrison Foundry Company, 219 Pa. 426. No defect of any kind was shown in the elevator, nor was there any evidence which would have justified a finding that it was unsafe for the employees to use in going to and from their work on the several stories in the building, if the engineer who operated it — not shown to have been incompetent — properly performed his duty. On the contrary, it affirmatively appeared in the testimony of the last witness called that there was a friction brake on it by which it could have been controlled. Its falling was not shown to have been due to the breach of any duty owed by the employer to his employees. With the friction brake upon it, the engineer could have controlled it, and the only rational conclusion is that, instead of doing so, he carelessly let it drop with resultant consequences to employees, which are not to be visited upon the employer.

Judgment affirmed.