137 Pa. 148 | Pa. | 1890
Opinion,
In considering the portion of the charge which constitutes the first specifications of error, regard must be had to what precedes it. The learned judge had correctly stated who were fellow-servants, and if the company desired specific instructions on the point of the relation of McFadden to the appellee,
The question whethei McFadden was competent to superintend the work of taking down the pole was fairly raised by his own and Toner’s evidence, as witnesses for the company. He was without experience or instruction in that work, and he was never directed to take charge of it. His duties were defined by his orders, and these were to look after the wheeling' and handling of the coal; and, in his own language, “ that was all he was concerned with.” The conduct of Toner, the morning of the accident, was confirmatory of this view of the scope of McFadden’s employment. He informed the company of his intended temporary absence from the work, and no objection was made to it, and he requested and was promised that a man should be sent to take his place. These facts he communicated to McFadden, who had not the slightest intimation that he was expected to assume any duty of Toner in the taking down and care of the pole. The company knew how the pole was supported, and that its employees' were engaged in removing the coal from it, and must, therefore, have known that their safety required the presence of a competent person to supervise the work of taking it down. It knew McFadden’s habits, capacity, and duties, and the duties of Toner. Its promise to send a man to take the place of the latter was evidence of its own understanding of its duty in the premises.
It is too late for the company to object, after a trial on the merits, that the question whether it had placed a competent man in charge of this work was not raised by the pleadings. These would have been amended on motion in the court below, even after verdict, to make the record conform to what was tried there, and we consider an amendment as made which is of course : Jones v. Freyer, 3 W. N. 365; Bolton v. King, 105 Pa. 78. It is not claimed that the learned judge erred in his statement to the jury of the duties of the company to its employees, but it is contended that he should have charged that these had all been performed in this case. But, as already indicated, we think the question whether a competent man was placed in charge of the pole was for the jury. It is a sufficient answer to the other criticisms of that part of the charge
The remaining specifications may be considered together. They are based on the denial of the written points submitted by the company, and each of these concluded with a request for a peremptory instruction to find for the defendant.
An employee assumes, risks which are patent, and latent risks of which he is informed. In the case before us, the pole was not held in place by guys, and it was not set in the ground. Its only support was the coal pile around it. As the support was weakened by the removal of the coal, it was liable at any moment to fall upon and crush the men working at its base. The company knew this, but did not advise its coal-handlers of the danger to which they were exposed. It was a danger which was not patent to one in ignorance of the facts and whose experience and observation had taught him that such poles were either held in place by guys, or securely set in the ground. The same appliances which kept the pole in position while the coal-pile was being formed about it, would have held it securely there while the coal was being removed from it. These consisted of guys, which were taken away when the pile was formed and the work of removing it began. It seems from the testimony of Berger that the guys were taken away when the pile was complete, upon the theory that they were no longer of use there, and might be in the way of other guys supporting other poles in close proximity.. As a substitute for the security afforded by these, a plan was adopted for taking down the pole while the work of removing the coal was in progress. Two poles were taken down safely in pursuance of this plan; but the third pole, to which the apparatus was attached for the purpose of taking it down, fell among the workmen, killing two of them instantly, and seriously injuring others. It is obvious, from the description of the plan, that its successful execution required the vigilant superintendence of a competent person, and even thus, speaking for myself, it was dangerous. A slight inconvenience or expense may have been saved by it, but these can have no weight in a matter affecting the safety of the workmen.
The master owes to the servant the duty of providing a rea
An examination of this record having failed to satisfy us that there is any substantial error in it, the speciñcations are overruled, and
The judgment is affirmed.