264 Pa. 454 | Pa. | 1919
Opinion by
Plaintiff sued defendant to recover damages for personal injuries; the trial judge declined defendant’s point for binding instructions, reserved another point to substantially the same effect, and submitted the case to the jury, which found a verdict for plaintiff; the court below entered judgment for defendant non obstante veredicto, and plaintiff appeals. We must, therefore, assume as true all the facts and inferences from facts which the jury might have found in favor of plaintiff, and reject all those unfavorable to him which the jury might have rejected; but unattacked court records duly proved and admitted in evidence must be given due weight, though appearing in defendant’s testimony. Prom the standpoint stated, the facts are as follows:
Plaintiff and one Jacob Cottman, who were employees of defendant, were working for him in tearing out a portion of a building at the S. W. Cor. of 30th and Master streets in the City of Philadelphia, which had been partially destroyed by fire; and while so engaged plaintiff
The case was tried twice, and on the last trial, now being reviewed, plaintiff testified he and Cottman were engaged in getting a piece of burnt timber out of a shaft into which it had fallen, plaintiff going to the fifth story and pulling a rope attached to the timber, and Cottman pushing from below. Before going there he said to Cottman “Jake, I don’t think it’s very safe because you know how that floor is up there; I think it’s pretty dangerous.” And the latter said in reply “Yes, everything up there is perfectly safe and sound.” No reason was given by plaintiff why he did not think the floor was safe, but his remark implies he was well acquainted with the situation. He says he found the “fifth floor was nothing but lumber that had fallen down from the house when the fire was — rubbish, and half brickbats, and one stuff and an
At this trial he called two witnesses, who testified the best way to do this kind of work would be to use a block and tackle, but as their answers related rather to convenience in doing the work, and as one of them said a block and tackle would not be needed unless the timber was wedged in, which this one was not, and the other that they were not needed until the timber got to the top of the shaft, which plaintiff says this piece did not, we may dismiss their testimony from further consideration. There is no other evidence antagonistic to the method used in getting out the timber.
In 3 Labatt on Master and Servant, Sec. 924, it is said the duty to furnish a safe place to work does not apply “where the injured servant was hired for the express purpose of assisting in the repair, demolition or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work......or where the servant is engaged for the very purpose of making a dangerous place safe.” In our own reports there does not appear to be any case identical with the present, but the principle above quoted is sound, and has been applied in the case of work being done, in Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Wannamaker v. Burke, 111 Pa. 423; and Walton v. Bryn Mawr Hotel Co., 160 Pa. 3. Everybody knows a fire weakens a building, and the work to be performed is to remove the insecure parts of the building that it may thereafter be restored and made safe. In such cases
In the first place he does not aver the alleged fact. In his statement of claim, after setting forth every imaginable character of duty which defendant could owe to him, he says the accident happened “because of the improper method and system of said work, and of the dangerous condition of said building, and of the incompetent foreman and fellow workmen, and of the fact that the tools and appliances were not proper, and because the place in which the plaintiff was set to work was dangerous and unsafe.” There was no proof of any of those matters except the alleged “improper method and system of said work,” which has already been disposed of; and “the dangerous condition of said building” and “the place in which the plaintiff was set to work was dangerous and unsafe.” As already pointed out his knowledge of the alleged “dangerous condition of said building” precludes him from complaining of the alleged unsafe place to work, so that there was nothing in his statement of claim upon which he could recover.
Moreover he was bound to aver and prove that in reliance upon Cottman’s statement he proceeded with the work: 4 Labatt on Master and Servant, Sec. 1370 a. Therein also in section 1376, it is said the same rule applies in this class of cases as in “those in which there had been an explicit assertion by the master, or some agent for whose statements he was responsible, that, certain conditions of which the servant had acquired knowledge, had been remedied, or that certain precautions to secure his safety would be taken.” As regards this latter we said, in Dobra v. Lehigh Valley Coal Co., 250 Pa. 313, 317: “He
So, too, this record is barren of proof showing in what respect plaintiff thought the floor was dangerous, and in what respect, if any, it in fact was dangerous. All we are told is that it “gave way” at the edge and plaintiff’s foot and leg went into the shaft. There is no evidence that it was burned at the edge, or as to what caused it to give way or how it “gave way.” It certainly did not collapse, as plaintiff averred in his statement, for he does not allege it fell or there was a hole in it, and says he knows nothing about anything being wrong with the joists, which were under the floor all around the shaft. His evidence is a conclusion and not the facts upon which the conclusion is founded. In order to base a recovery upon the statement of Cottman, plaintiff was bound to aver and prove in what respect the floor was “pretty dangerous,” that he relied upon the statement that it was “perfectly safe and sound,” and was injured by reason of the danger to which he had called attention.
The judgment of the court below is affirmed.