247 Pa. 263 | Pa. | 1915
Opinion by
On April 17, 1913, C. S. Morrison, the plaintiff, was engaged with several other men in taking down an iron derrick owned by the defendant; the top part was successfully removed, but while the next section was being lowered by means of a gin-pole and tackle, the pole collapsed and Morrison was severely injured. The plaintiff recovered a verdict on which judgment was entered, and the defendant has appealed.
At argument, the appellant withdrew all its assignments of error except those which went to the sufficiency of the evidence to sustain the verdict. The appellant contends that no contract of employment was proved, no negligence on the part of the defendant was shown, and that the plaintiff was plainly guilty of contributory negligence.
A combination of circumstances akin to those in the present case, is not likely to arise again; hence it would serve no useful purpose to review the testimony in detail. It is enough to say that, while the case is a close one, yet there was evidence sufficient to sustain a finding that the plaintiff was in the defendant’s employ and the relation of master and servant existed between them; that the particular work which gave rise to the injury was performed under the superintendence and direction of one of the defendant’s foremen; that he selected and furnished the gin-pole; that this pole was not such an appliance as is ordinarily used for the purpose to which it was put, and was not sufficiently strong for that purpose; that the method employed in taking down the derrick by the use of a gin-pole was unusual and more dangerous in itself than the ordinary method of a temporary scaffold; that, although the foreman and the other members of the crew who were performing this work were experienced in taking down wood derricks, yet, none of them had had experience with iron derricks, particularly of the character of the one in question;
In an opinion refusing judgment non obstante veredicto, the court below states: “While the foreman of the defendant company was engaged with the other men in taking down the derrick, performing the same kind of manual labor as the other men so engaged, and generally assisting in said work, and whilst so employed Mr. Fleeger (the foreman) may under the evidence have been a fellow workman, yet, under the arrangement of employment of plaintiff, it was the duty of the defendant company to furnish a portion of the material, among other things, a gin-pole for such work. Mr. Fleeger furnished the gin-pole and in doing so he represented the defendant company as a vice principal. It therefore became a material inquiry to determine whether the company furnished a reasonably safe and sufficient gin-pole, and if the insufficiency of the gin-pole was the proximate cause of the injury. Under the testimony we could not say to the jury as a matter of fact that the gin-pole furnished by the defendant company was a reasonably safe appliance to do the work for which it was furnished. These were questions of fact, and we are of opinion it was within the province of the jury to decide them.”
Under the circumstances, we feel that the court below did not err in declining to withdraw the case from the jury, or in subsequently refusing to enter judgment for the defendant notwithstanding the verdict. True, it does appear that prior to beginning the work, Mr. Fleeger “mentioned something about using three-inch pipe” for the gin-pole, and that at least one member of the crew at that time expressed the view that such pipe
The assignments of error — not withdrawn — are overruled, and the judgment is affirmed.