198 Pa. 312 | Pa. | 1901
Opinion by
We are of opinion that the learned judge of the court below was in error in withdrawing this case from the jury, and in not submitting to them to determine the negligence of the defendant as well as the concurring negligence of the plaintiff.
The testimony produced at the trial and which we must assume to be true, tends to establish the following facts : John Reese, the plaintiff, was a puddler and for many years worked at his occupation in the rolling mills at Cleveland, Ohio. In October, 1886, he and other workmen were engaged in wrecking and tearing down furnaces at one of these mills. He was employed by, and was working for and under the immediate orders of, the defendant. The furnaces were erected in pairs, with the rear plates within eight inches or a foot of each other and resting on the same foundation, which is wider than the front foundation. The front, rear and sides were of cast iron plates bolted together, and were supported by a brick foundation about one foot and a half wide. The distance between the front and rear foundation walls was about five or six feet.
The interior of the furnace was lined with brick, and the top was oval, also of brick. The front and rear plates were held together by connecting rods at the top and bottom of the furnace. At the time of the accident, the plaintiff had been engaged three weeks assisting in tearing down the furnaces, in
Shortly before the plate fell the plaintiff was absent about half an hour at a blacksmith’s shop having a chisel sharpened. When he returned he found the plate shifted some from its former position. The defendant then told him to go and pick the brick out of the furnace, to hurry up about it, that he did not want the team to stand there. To this order the plaintiff said, “ I will, but the best wayis to take them plates down first.” The defendant then said, “ Go and do what I tell you to do, the plates is all right, I’m looking after them.” He received similar instructions from the defendant before he went to the blacksmith shop. At the last interview between the parties in regard to the plate, which was three or four minutes before the plate fell, the defendant was also told by another person that he ought to have the plates down, to which he replied that the plate was all right. His attention was also called to the plate by Eugene McCaffrey a short time before it fell, with the suggestion that it was dangerous to the men working on the furnace, and that if he, McCaffrey, had some lashing he could lash the plate so it would not fall. The defendant very emphatically told McCaffrey to attend to his own business, and that he would attend to the plate. Two years after the accident the defendant also said to McCaffrey that if he had taken his advice, the accident would not have happened.
At the time the plaintiff was injured he was working with his back to the plate removing brick from the front foundation. This work had no effect, however, on the rear foundation on
The learned judge of the court below assigned no reason, so far as the record discloses, for granting the nonsuit, or for refusing to take it off. The appellant’s argument suggests that it was because the court thought the evidence in this case was substantially the same as that in Reese v. Clark, 146 Pa. 465. We have therefore stated the facts more fully than we otherwise would have done, so that the difference between the cases may be readily observed. We do not intend to question the doctrine announced by the court when the case was here before; we are merely applying the well settled principles of law to the facts as disclosed in the present case.
It must be apparent from the most superficial view of the testimony in this case that the defendant’s action was the proximate cause of the accident to the plaintiff. The work of wrecking the furnaces was done under the immediate orders and supervision of the defendant. He was, therefore, familiar with the work as it progressed, and knew the dangers to which the workmen were subject. He knew the size of the plate in question, that it had been placed in a position very slightly reclining on an old brick wall the day before the accident. He was not only cognizant of these facts which might well have put him on inquiry as to the dangerous place in which he compelled his employees to labor, but he was distinctly notified of the peril to which he was subjecting the plaintiff and the other laborers engaged in dismantling the furnace. Unless, therefore, the plaintiff’s negligence contributed to his injury, the defendant should respond in damages for his negligent conduct.
The plate was laid against the roar plate of another furnace the day before the accident, and the plaintiff knew this fact and the position the plate occupied. It is, therefore, contended by the defendant that if there was danger in working in front of it, the plaintiff knew it and assumed the risk. It is undoubtedly true that a servant assumes the risks naturally and reasonably incident to his employment. It will be conceded, also, as determined by all the authorities, that a servant who voluntarily undertakes a perilous employment, the dangerous character of
We think the facts in this case bring it within the well recognized rules laid down in the text books and in our own decisions. In Shearman & Redfield on Negligence (5th ed.), sec. 186,
Applying these principles to the case in hand, we think the learned court should have submitted to the jury defendant’s negligence and the plaintiff’s contributory negligence. It may be, as urged by the defendant, that the plaintiff’s testimony in this case in some important particulars is different from what it was in the former case in which his right to recover for his injuries was denied; but if so, the remedy is with the jury, under proper instructions from the court below. We must determine the rights of the parties as disclosed by the testimony brought up with this record.
The other assignments relate to the rejection by the court below of the opinions of certain witnesses called by the plaintiff. The testimony was properly excluded on the authority of Graham v. Penna. R. Co., 139 Pa. 149, and numerous other cases which follow it. In Graham v. Penna. R. Co., it was held that “in those matters where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, a witness may be allowed to supplement his description by his opinion, to put the jury in position to determine the facts in issue. But when the circumstances are such that they can be fully and accurately described to the jury, and their bearing on the issue estimated by persons without special knowledge, or
The second, third, fourth and fifth assignments are overruled and dismissed; the first assignment is sustained and the judgment is reversed with a venire facias de novo.