Powell v. S. Morgan Smith Co.

237 Pa. 272 | Pa. | 1912

Opinion by

Mr. Justice Mestrezat,

The first assignment alleges error in the admission of certain testimony and the second, in refusing to strike out certain testimony. Neither of these assignments can be sustained. If it be conceded that the offer complained of in the first assignment was inadmissible, the testimony subsequently admitted under the offer was clearly competent. The court excluded the testimony as to the accident to another person and admitted only that which showed what the foreman said to the plaintiff at the time he ordered the latter to repair the belting which operated the emery wheel. The testimony asked to be stricken out was in reply to questions on cross examination by the counsel of the appellant company, but if the motion to strike out should have been allowed, we think the answer of the witness did the appellant no harm.

The third, fourth, fifth and sixth assignments allege error in the court’s instructions to the jury. The negligence complained of was the action of the defendant’s foreman in permitting and directing the crane to be run on the track and to strike the plaintiff while he was shortening the belting as he was ordered to do by the foreman. That was the negligence relied on by the plaintiff, and it was clearly ,a question of fact under the evidence submitted and could not have been withdrawn from the jury. If the plaintiff’s witnesses were credible the foreman gave him positive orders to perform the service, and after he had ordered the plaintiff to ascend the ladder for the purpose he directed the craneman to move the crane in an easterly direction to the place where the plaintiff was employed and where he received his injuries by reason of the crane crushing his hand. There was also evidence which, if believed, showed that after the craneman was instructed to move the crane, the foreman was within a short distance of the plaintiff at the time the accident occurred. If these facts, were established, there can be no question that the defendant’s negligence was for the jury. The plaintiff had a right to assume that while engaged in the service directed by the foreman, he would not be endangered by the crane put in motion by the order of the foreman himself: Wessel v. Steel Company, 28 Pa. Superior Ct. 332. Having ordered the plaintiff to ascend the ladder for the purpose of performing the service it was the duty of the foreman, who had charge of the work to see that the place was reasonably safe, and that the plaintiff was protected while he was engaged in the service. This the foreman did not do; ,on the contrary, he not only failed to protect the plairn tiff but gave instructions for moving tbe crane which, under the circumstances, necessarily resulted in endangering the plaintiff’s safety.

We do not agree with the learned counsel for the appellant that the language complained of in the third assignment was equivalent to binding instructions for the plaintiff. What the court meant and what the jury must have understood was that if the foreman had directed him to shorten the belting and had directed the crane to be moved eastwardly while the plaintiff was ■ thus engaged thereby causing his injuries, the plaintiff had made out a case which the court would have to submit to the jury. The learned judge, however, proceeded to state the defendant’s side of the case, and to direct attention to the facts as the defendant claimed them to be and then said: “If you find from all of the evidence and the verity of the case as it was presented to you by the plaintiff, before the defendants produce their evidence, then your verdict should be for the plaintiff, but if you find the theories as I have explained to you of the defendant sustained by the evidence, then your verdict should be for the defendant.” We think there is no ground for the contention that the jury could have understood the court to mean that they were compelled to find for the plaintiff.

Whether it was negligence for the plaintiff to ascend the ladder and perform the service required of him without giving notice to the operator of the crane was clearly one of fact under the evidence and not to be determined as a matter of law by the court. The injury to the plaintiff was caused by moving the crane eastwardly while he was at work. Of course, the plaintiff knew that the crane could be moved eastwardly, and that danger would likely result to him if he were engaged at the time that it was moved. Had it been a part of the plaintiff’s general employment to perform this service and he had not been performing it by the direct instructions of the foreman it would have been his duty to notify the operator not to run the crane while he was at work. We so held in Parks v. Lewis Foundry and Machine Company, 234 Pa. 463. If, however, the foreman instructed him to perform the work, he could assume that the crane would not be moved while he was obeying the foreman’s order, and in that event he would be relieved from the duty of giving the notice to the operator. He could not anticipate that the foreman would not do his duty in protecting him from the danger and, hence, the fact that he did not give notice to the operator of the crane was not necessarily negligence.

The excerpt from the charge which constitutes the fourth assignment of error quoted in the appellant’s printed brief when read in connection with the other parts of the charge does not justify the contention that it was an instruction that if the jury found the foreman guilty of negligence it would justify a verdict for the plaintiff notwithstanding the latter was guilty of contributory negligence. Standing alone, it might bear that construction, but the charge must be read and considered as a whole. What the learned court said, and what we have no doubt the jury understood, was that the plaintiff would have been guilty of contributory negligence in attempting to perform the work without giving notice to the crane operator, if the foreman who ordered him to do the work had not also ordered the operator to move the crane which caused his injuries. The statement is not erroneous in view of what was said by the court in the other parts of the charge. Of course, it was the duty of the plaintiff to use care while engaged in repairing the belting notwithstanding he had been ordered to do the work by the foreman and the latter had directed the operation of the crane. If he failed in this duty, he could not recover although the defendant’s foreman had been negligent, and the learned judge so instructed. He said: “If you find that the accident occurred because of the volunteered carelessness, or the contributory negligence, as I have described it to you of the plaintiff himself, then your verdict of course must be for the defendant.”

In the charge, the court directed the attention of the jury to the testimony showing the plaintiff’s injuries, his earning capacity, the character of the work he had been engaged in, and what wages he had received, and then used the language as to the measure of damages complained of in the fifth assignment of error. The learned judge should possibly have instructed the jury more explicitly on the subject, but, in view of what he had already said we cannot say there is reversible error in the language used. As said by the present. Chief Justice in Irwin v. Pennsylvania Railroad Company, 226 Pa. 156: “This was a correct' statement of the rule, although perhaps not so clear and explicit as desirable to insure its full understanding by the jury. It was, however, satisfactory to counsel at the time, and if fuller and plainer instructions were desired, they should have been asked for.”

The judgment is affirmed.