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