171 F. 394 | 3rd Cir. | 1909
In this case John O’Hara seeks by writ of error to reverse a judgment rendered against him by the Circuit Court of the United States for the Western District of Pennsylvania, in an action of trespass brought by him against the Brown Hoisting Machine Company, hereinafter referred to as the defendant. The judgment was entered on a verdict for the defendant returned by direction of the court and the substantial question raised by the assignments of error is whether the court erred in directing under the pleadings and evidence such verdict. O’Hara in his statement of claim, among other things, alleged as follows:
“The plaintiff on and prior to the 20th of November, 1906, was in the employ of the defendant as a structural iron worker, and on the date aforesaid, while attending to, and in the course of his duties as such employe, he was holding a certain steel entter, or chisel, on a certain iron, or steel, rivet, while another employe of the defendant, in the performance of his duty, struck said cutter, or chisel, with a sledge of iron and steel weighing about eight pounds, when, by reason of said sledge being a defective, improper and dangerous tool, a piece of steel from off the face or surface of same, struck, penetrated and became imbedded in plaintiff’s left eye, injuring it to such an extent that it was destroyed and had to be taken out. Plaintiff avers that the said injury was caused through tho negligence and carelessness of the defendant aforesaid, not regarding its duty in that behalf, in failing to provide its employes safe and proper tools for the doing of their said work, viz.: in failing to provide said employe, using said sledge, with a good, perfect, safe and proper sledge with which to strike said cutter in the hands of the plaintiff; but, on tho contrary, the same was so caused by reason of defendant furnishing said employe using said sledge with a tool which was dangerous, defective, cracked and improper, without the knowledge or consent of the plaintiff as to the condition of the same. And the plaintiff avers that the defendant well knew, or on the exercise of such reasonable care as it was its duty to exercise in the premises, should have ascertained, and known, of the defective and dangerous condition of said sledge.”
That the plaintiff lost an eye throtigh its penetration by a minute piece of steel detached from the face of the sledge or maul when, in the hands of another workman, it struck a chisel held by the plaintiff, is beyond doubt. No element of contributory negligence on the part of the plaintiff, or of negligence on the part of his fellow-servant who