42 A.2d 170 | Pa. Super. Ct. | 1945
Argued March 14, 1945. In this action by a widow-plaintiff for the death of her sixteen-year-old son, the verdict was for her in the sum of $1,500. Defendant's appeal is from the refusal of judgment n.o.v. in his favor.
The boy was employed by defendant, an experienced farmer, to help him harvest a field of oats. For the purpose, defendant used a tractor attached to a combination mowing and threshing machine referred to as a combine. The machine weighed about a ton and one-half and a part of it was eleven feet high. Five feet above the ground there was a platform with a guard rail, upon which the operator must stand in attaching an empty bag to a device to receive the grain from the thresher; to remove and tie the bag when full, and to deposit it in a chute running down from the platform. The full bags did not drop to the ground from the chute until released by the operator. On the day in question defendant operated the tractor and by means of it drew the combine to the field with the boy on the platform. The upper part of the field was comparatively level but a part of it, curving around one end, was a steep hillside on an angle of between 35 and 45 degrees. Defendant made one circuit of the outside of the field with the combine drawn by the tractor; on the second time around, the combine overturned on the curve down the hill and came to rest upside down with the boy crushed underneath it. He died almost instantly.
Defendant is chargeable with negligence. He had operated the combine for four years and was familiar with it. It was a cumbersome piece of machinery and defendant knew of the danger of operation on hilly ground. There were skid marks of the tractor thirty feet in length on the hillside leading to the spot where *165
the tractor came to a stop after the accident. The difficulty which defendant had in negotiating the curve with the tractor on the steep decline, was notice to him of the probability that the top-heavy combine might overturn from the same cause. He testified that he did not know whether the boy was on the platform at the time, but he did not turn his head to see. A master must provide his servant with a reasonably safe place to work (Kelly v. Henry Bower C. Mfg. Co.,
But even so, appellant contends that plaintiff is barred because the boy violated instructions given him as to the manner of performing the work; that he assumed the risk of his employment; and in general was guilty of contributory negligence. The same considerations have a bearing on all of these questions.
Defendant testified that he had warned the boy of the danger and instructed him not to ride on the combine but to walk behind it, and also to discharge each bag from the chute as it was filled. How he expected the boy to release the full bags except from the platform, does not appear. Of course an employee must obey all reasonable instructions of his employer. Restatement, Agency, § 385. But this testimony was not elicited from defendant as on cross-examination; it was developed by defendant on direct examination and plaintiff is not bound by it. Whether five bags of grain were allowed to accumulate in the chute, increasing the weight on the low side of the machine, as appellant contends, was not conclusively established. The bags of grain, or some of them, found on the ground near the overturned machine may have been discharged in the course of the first circuit of the field. Nor is there evidence that their added weight in the chute would have *166
contributed to the happening of the accident. Moreover whether these or any instructions were given, depending as it does on oral testimony though uncontradicted, was for the jury. Hartig v.American Ice Co.,
"It is only in a clear case that the question of assumption of risk is one of law for the court. Where there is doubt as to the facts or as to inferences to be drawn from them, it becomes a question for the jury": Moseley v. Reading Co.,
The question of contributory negligence also was clearly for the jury. Because of the boy's death plaintiff was aided by the presumption that he exercised due care. Schmidt v. Phila. R.Ry. Co.,
Judgment affirmed.