Reese v. Clark, 146 Pa. 465

Reese v. Clark

146 Pa. 465 | Pennsylvania Court of Common Pleas, Alleghany County | 1892

Opinion,

Mr. Justice Green :

After a very careful examination of the testimony in this case, we find ourselves unable to discover any evidence of negligence on the part of the defendant. The defendant, a woman, was the owner of the mill at which the accident occurred, but lived at a distance from it and was not present at the time of the accident, and had no direct connection with the work that was being done when it occurred. She was represented by her son, Frank Clark, who had charge of the work. The plaintiff’s injury was occasioned by some heavy iron plates falling upon him while he was gathering and separating bricks in front of the plates. No one testified as to how the plates fell, *471or what was the cause of their falling. The plaintiff testified that he and another workman had placed the plates in the- position in which they were. He was asked:

“ Q. What made this plate fall down on you ? A. I couldn’t tell you. Q. You knew that it was loose, didn’t you? A. I knew it was loose from the other part, and I knew they were leaning against the other furnace. Q. You helped loosen it yourself, didn’t you? A. Yes, sir; I done it by Mr. Clark’s orders. Q. Helped loosen it by Mr. Clark’s orders? A. Yes, sir; that was my work to do. Q. It was your work to loosen the plates? A. Yes, sir; then, after we leaned them back against the other furnace, he told me to go down and pick them brick up. I said we had better get them plates down first. ‘No,’ he says, ‘you go ahead and pick them brick up. I don’t want the team to wait at all for the brick.’ .... Q. Will you tell us again which way these plates were leaning, in to the furnace or out ? A. They were leaning away from me that way, (illustrating.) Q. That is, out backwards ? A. Yes, sir.” .... By the court: “ When you loosened these bolts, you leaned it back yourself? A. Me and McCaffrej^, yes, sir. Q. And went to work at the bricks? A. Yes, sir.” By Mr. Dickey: “ Q. Why didn’t you throw the plate down, instead of leaning it back? A. Because he ordered me to go and pick these brick up. I had to go by his orders. Q. Wasn’t it just as easy to throw the plate down flat as to lean it back? A. Yes, if I had orders to do it. He ordered me to go and pick these brick up, and I had to go by his orders, because he was the manager of the place. Q. You say the plate was leaning back against the other furnace ? A. Yes, sir. Q. And you can’t tell us what made it fall down? A. No, sir; can’t say nothing about that.” He had previously testified that Clark walked away when he told the plaintiff to pick up the bricks, and was asked: “ Q. How long after he told you to do this was it until you got hurt? A. Well, some time in the afternoon it was. I was working there over two hours after he told me to pick these bricks up.”

Upon the plaintiff’s testimony, therefore, and it was not changed in the least by any other testimony on this subject, the plates were put in the position they occupied by the plaintiff himself and McCaffrey. There was no testimony that their *472position was changed at all after they were placed and before they fell. They therefore fell from the position in which the plaintiff himself helped to place them. He does not say he had any orders to place them in that particular position, or in any position. It was exclusively his own act, assisted by another. From that position they fell. The plaintiff says he does not know what made the plates fall. No one else testified as to how or why the plates fell. The plaintiff was at work picking up bricks in front of the plates. It is perfectly manifest that if the plates fell because they were not placed in a secure position it was his own fault, and the consequences of that fault cannot with any propriety be visited upon the defendant. If, on the other hand, the plates fell because the bricks in front of them were removed so as to weaken the support upon which they rested, that also was the plaintiff’s own fault, because it was he who removed them. He knew where the plates were and upon what they rested, and it was at least his duty to take care that he did not remove or interfere with their support. As he testified that he did not know what made the plates fall, there is no legitimate inference as to the cause of the fall, except that either they were insecurely placed, or their support was removed or weakened. For both of these possible causes the plaintiff alone is responsible, and the defendant not at all. Any other cause, if there were any other, must be guessed at, and that is not permissible. In Huey v. Gahlenbeck, 121 Pa. 238, we held that one who is injured when lawfully upon the premises of another, but does nor show either the direct cause of the injury, or that it occurred through the negligence of the defendant, is not entitled to recover damages for the injury. In Phila. R. Co. v. Schertle, 97 Pa. 450, where a brakeman, in some unexplained way, fell under the wheels of an engine and was killed, the plaintiffs gave some proof of a want of repairs in the track and a defective step on the engine, and a recovery was had below, we reversed the judgment saying: “ The case was submitted to the jury without evidence, and the verdict has no better foundation than a guess, or at most mere possibilities. This will not do.”

In the present case, we cannot conceive of any other cause of the fall of the plates than one or the other of the two already *473named, and. for either of those it is not possible to hold the defendant liable. There was no proof at all of any interference with the plates by anybody but the plaintiff and McCaffrey, a fellow-workman. The learned judge of the court below was so much impressed with the absence of proof of negligence by the defendant that he told the jury he would not submit the case to them at all if it were not for the testimony that Frank Clark had said, “ You go ahead with the work; I will take care of the plate,” or words to that effect. He thought that those words uttered by the defendant’s son were an assumption of the consequences of the possible falling of the plate, and if he neglected to give warning of the actual falling a liability of the defendant might thus be worked out. But we cannot assent to that view of the case, in view of the testimony of the plaintiff and his witnesses. If the fall were due to the insecure placing of the plates, or the removal or weakening of their support by the act of the plaintiff himself, he was guilty of contributory negligence, and for that reason alone cannot recover, whether a promise to give warning was given or not. The evidence does not permit of any other inference as to the cause of the fall of the plates, than the insecure placing of them or the careless removal of the bricks, and for both of them the plaintiff himself was responsible. But, in any event, under all the testimony, including that of the plaintiff, the falling of the plates took place in an instant, and without any premonitory indication, and it was not possible for Clark or any one else to give any preliminary notice or warning. There is not a particle of testimony in the case from which it is possible to infer that Clark did know, or could know, that the plates would fall, or were likely to fall, for a single moment before they did fall; and there is no evidence, therefore, upon which to found any inference of negligence on Frank Clark’s part in that respect.

Moreover, the plaintiff testified twice, distinctly, that it was two hours, or upwards, after the time when Clark gave him the order to pick up the bricks, before the accident occurred, and that he was at work removing the bricks from in front of the plates all that time. He did once say that Clark was there two or three minutes before he was hurt, but the force of that testimony was all taken away by his re-cross-examination immediately following, in which he said that it was in the beginning, *474two hours before the accident happened, when Clark said to him he would take care of the plate. Independently of that, however, there is no proof that even two or three minutes only before the accident happened was there any indication that the plates were likely to fall. In the case of Ford v. Anderson, 139 Pa. 261, we held that the ground of an employer’s liability is not danger, but negligence, and that the test of negligence in respect of machinery is the ordinary usage of the business; and where there is a failure not only to show that the machinery was negligently constructed, but how the injury to the plaintiff occurred, it is error to refuse peremptory instructions for the defen dant. In the case of Sykes v. Packer, 99 Pa. 465, we held that a master was not liable for negligence in omitting to give notice of the removal of a block and tackle used to support the building on which the master and servant were working, and the servant, not knowing of the removal, fell and was injured in consequence of such removal. We said: “The defendant (plaintiff) had as good an opportunity of seeing the tackle as any other employee had. He must be held to have known what was clearly visible to his sight. It was not necessary that he should be specifically informed of a fact so patent to him. It is not sufficient evidence of negligence that a jury has now found it was improper to remove the. tackle, judged by its effect.”

So, in the present case, the plaintiff had every opportunity to know the exact condition of the plates during all the time he was at work. If the danger was increased by his removal of the bricks, it was his duty to notice it and guard against it, no matter what was said by Clark. He was under no obligation to continue working in a dangerous place or employment, and if he did so he assumed the risk himself. He could not excuse his own want of care by the allegation that some one else had promised to care for him. On the whole testimony, we are clearly of opinion that the plaintiff was not entitled to recover.

Judgment reversed.

Mr. Justice Mitchell noted his dissent.