Appeal, No. 100 | Pa. | Jan 7, 1918
Opinion by
This is an action of trespass brought by Ella K. Swartz to recover damages for the death of her husband who was killed by the breaking of a scaffold upon which he was working while in the employ of the defendant company.
The plaintiff’s husband was a structural steel worker and riveter, and, on March 16, 1915, while he was engaged in assisting in the erection of the structural iron and «teel frame of the William Penn Hotel in the City of Pittsburgh, one of the two needle beams in the scaffolding on which he and other employees were working broke, causing the plank resting on the beams to fall, and throwing the deceased through an open space directly beneath the scaffold a distance, of about eighty feet to the street floor, as a result of which he’ died. The scaffold was constructed by laying planks across parallel timbers about seven feet apart, known as needle beams, which were suspended by ropes from the steel girders immediately above. The negligence alleged was the failure to furnish the deceased a reasonably safe place whereon to work, negligent and improper construction of the scaffold by using therein a defective needle beam, failure to properly inspect the beam, failure to provide and furnish suitable beams for the construction of the scaffold, and, in violation of the laws of Pennsylvania, failure to have the joists or girders on the fourth and fifth floors, beneath the place where the deceased was working, covered with rough boards or other suitable material so as to protect the workmen on the scaffold from falling through said joists or girders. The plea was not guilty. The trial resulted in a verdict for the plaintiff. The defendant offered no evidence, but requested the court to give binding instructions for the de
The only question involved in this appeal, therefore, is whether there was sufficient evidence of negligence to justify the court in submitting the case to the jury. It is contended by the defendant that there was no evidence of any defect in the scaffold at the time of the accident; that, if there was a defect, it was open and obvious and one which the deceased was bound to take notice of; and that as the evidence shows there was no standard for selecting the materials for constructing the scaffold, and such selection was dependent upon the good judgment of the foreman, “who was when making the selection a vice-principal,” and, there being no evidence of incompetency of the foreman, his mistake, if any there was, did not amqunt to negligence for which the employer was liable.
We have carefully examined all the testimony and are of the opinion that the learned judge was right in holding the evidence sufficient to warrant its submission to the jury on the question of defendant’s negligence. We think it not necessary to give an excerpt of the testimony, or to state in detail what each witness testified. The only evidence in the case is that introduced by the plaintiff. Swartz was a riveter, and was engaged in that work at the time of the accident. The scaffold was erected by other men in the riveting gang about two or three weeks before the accident which occurred on the first day Swartz worked on the building and an hour or so after he began work. The needle beams were some eighteen feet in length. The broken beam was in evidence and inspected by the jury. These beams were three and one-half by five inches, and expert witnesses testified that they should have been four by six inches, or larger. A witness testified that the wood in the broken beam was brash or brittle and too
There is no ground for the contention that the defects were obvious to the deceased before the accident. The evidence showed the scaffold had been erected two or three weeks before he saw and went upon it on the morning he received his injuries, and he had been working there only about an hour before the beam broke and precipitated the workmen to the ground below. It was his first day on the job. The needle beams were necessarily covered by the planks laid upon them, and any defects in them would be hidden from his view. The testimony, therefore, did not disclose negligence or assumption of risk-on the part of the deceased. An employee must know the circumstances and appreciate the risk before he will be held to have assumed it: Schall v. Cole, 107 Pa. 1" court="Pa." date_filed="1884-05-22" href="https://app.midpage.ai/document/schall-v-cole-6237819?utm_source=webapp" opinion_id="6237819">107 Pa. 1. He is not equally bound with his employer to know whether appliances are reasonably safe and in ordinary use, and he does not assume the risk upon the employer’s failure to provide such as are proper: Bannon v. Lutz, 158 Pa. 166" court="Pa." date_filed="1893-11-06" href="https://app.midpage.ai/document/bannon-v-lutz-6241834?utm_source=webapp" opinion_id="6241834">158 Pa. 166. It may be suggested, however, that whether the danger was obvious and should have been seen and recognized by the deceased was for the jury and not for the court.
The appellant admits that the foreman was a vice-principal when making the selection of the timber for the scaffold, but claims that, as there was no evidence of his incompetency, his mistake did not amount to negligence. It appears from the evidence and the jury were justified in finding that there was not an ample supply of materials for the construction of this scaffold and also that defendant’s foreman selected the particular beams and boards which the employees were to use in the scaffold and that there were no other beams available for use in its construction. The act of the foreman, therefore, in designating the material to be used in this particular
The judgment is affirmed.