19 Pa. Super. 464 | Pa. Super. Ct. | 1902
Lead Opinion
Opinion by
The plaintiff was employed by the defendants, who are locomotive manufacturers and operate a large plant composed of many separate buildings. One Connery was a foreman in the boiler shop in which the plaintiff worked, and was in charge of a gang of three or four men. Connery ordered the plaintiff to transfer, by means of a traveling crane, certain material from where it had been delivered to where it was to be used. The material consisted of castings of different sizes and weights and to effect its transfer the pieces were made fast to the crane by slings or hooks which consisted of short chains with either a hook or a bolt and nut at one end to be inserted in the holes in the pieces to be moved, and at the other end a ring which was placed on the hook of the chain depending from the crane. There were a number of these slings of different sizes and design, for use in moving pieces of different weight. The plaintiff directed the removal of the pieces from the wagons, fastened them to the slings, and gave directions to the man who operated the crane where they were to be taken. Connery was present at the time the plaintiff was unloading the pieces from the wagons when one of the hooks in use broke. The accident is described by the plaintiff as follows; “ I took
The negligence of the defendants, as urged in the plaintiff’s statement, was that they “ carelessly, negligently, and knowingly allowed a defective, dangerous, and unsafe hook to be attached to a chain connected with said crane, that said hook broke and dropped the piece of iron then being carried.” If is
The measure of liability is clearly defined in Ross v. Walker, 189 Pa. 42: “ The master does not insure his employees against each other, nor is he bound tó supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass-.provided-for them; they must use their own judgment as to the manner of handling it. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each or all of his employees. The fact that one employee is more skillful than another, or has had greater experience, and is so deferred to by Others, does not change his relation to his employer or to his
If the accident was due to a concealed or latent defect in the hook, such as reasonable care would not detect or provide against, the employer would not be liable: Toohey v. Equitable Gas Company, 179 Pa. 437. It-is not alleged that the tools furnished were old and worn, or had not been inspected, nor that they were in an unsafe condition, as in Honifius v. Chambersburg Engineering Company, 196 Pa. 47; Newton v. Vulcan Iron Works, 199 Pa. 646, and Dyer v. Pittsburg Bridge Co., 198 Pa. 182, the sole objection by the plaintiff being that “ the hooks were not strong enough.” They had been in use but three or four weeks, and whether the hook was not strong enough to safely lift the particular casting was for the plaintiff to decide, as Connery was not present. Whenever an employee discovers anything affecting the safety of the machinery or tool or appliance, which he is obliged to use, and his judgment based on his experience gives notice of imminent danger in using it with skill and care so that it would be reckless to use it, the employer is not liable. The plaintiff was not an ordinary laborer but the person in full charge of all the tools and
Absolute safety is unattainable, and employers are not insurers. They are .liable for the consequences, not of danger but of negligence: Leonard v. Herrmann, 195 Pa. 222; Purdy v. Westingliouse Electric & Mfg. Co., 197 Pa. 257.
It was clearly proven that Connery was several removes in rank of employment from the defendants as principals, his immediate superior being John Morgan, who iii turn was subject to1 the direction of others. Connery’s duty in the shop ended at- six; o’clock aiid thé accident did not occur until two hours later, but the night foreman has not been connected with the accident in any manner. Assuming that Connery Was the foreman of that shop, the accident was caused by either the plaintiff’s- mistake in judgment as to the strength of the hook, for which the employer is not responsible, or it was due to the direction Of Connery to use the hooks instead of the bolt and nnf attachments. In the latter view, under authority of McCinley v. Levering, 152 Pa. 366, and the cases therein cited, and Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617, Duncan v. A. & P. Roberts Co., 194 Pa. 563, Connery was a fellow-workman with the plaintiff and there cannot be a recovery.
The judgment is reversed.
Dissenting Opinion
dissenting:
I regard the present case as one to which the view expressed by Mr. Justice Dean, in dissenting from the judgment of the Supreme Court in Ricks v. Flynn, 196 Pa. 263, is strikingly applicable. Said he:
“ The tendency to exempt employers from just responsibility for the negligence of supervisors aiid bosses to whom they entrust such grave duties is in my opinion too pronounced, and will lead to consequences, which, if not now clearly foreseen, can, with very reasonable certainty, be conjectured.”
The tendency to narrow the scope of the vice principal’s ac
In the case before us, Connery was employed by the defendants as foreman of a department in the boiler shop, with “ probably a hundred men ” under his direction, and having, as he testified, “ general supervision of the department.” As to that department, there can be no question of his character as a vice-principal. I may add that I do not concur in the view held by the trial judge, that the defendants’ liability for Connery’s acts, as vice-principal, depended on his power to discharge. The plaintiff was employed, under Connery, to attend a traveling crane, used for the transportation of portions of boilers. In 'attaching these to the crane, two classes of appliances were provided: one with hooks only, and another with a bolt attached. The plaintiff objected to using the former, telling Connery he thought they were not strong enough, but Connery ordered him to use them, because the latter, though stronger, were slower in operation. On the afternoon of December 9,1899, in lifting a fire door, a hook broke, but no one was injured. During the evening, in'lifting a throat-sheet, another hook broke, letting the metal fall on the plaintiff’s foot; hence this action.
The plaintiff having been thus restricted to the use of the weaker appliance, the defendants must be held to have assumed the responsibility for its sufficiency, unless it was obviously inadequate; and whether, it was so, was a question to be determined by the 'jury. It was submitted to them with instructions quite as favorable to the defendants as they were entitled to. In my view of the questions involved, the judgment should be affirmed.