111 Pa. 423 | Pa. | 1886
delivered the opinion of the court, January 25th, 1886.
The first and second assignments may be considered together. They allege error in the answer of the court to the defendants’ first and second points. While differing in
We do not understand the facts of which this point is predicated to be disputed. The action was brought in the court below for injuries received by plaintiff while in defendants’ employ, by falling into a hole in the floor of one of the upper stories of the building in which their business is conducted. The defendants have a large tailoring establishment at the corner of Sixth and Market streets in the city of Philadelphia. The building is several stories in height. The room in which the accident occurred was in one of the upper stories and had, up to a few daj^s previous to the occurrence, been used as the shirt manufactory, which was a branch of defendants’ business, but it had befen concluded to convert it into a cloth sponging room, and at the time of the accident the moving of the shirt department out, and the cloth department in, was being proceeded with. Some alterations of the room were necessary in order to adapt it to its new use, and the carpenters connected with the establishment, plasterers and other mechanics were making said alterations, and the employees of the shirt and cloth departments were assisting in the moving. The hole into which the plaintiff fell was used in carrying on the shirt business, for the purpose of getting rid of the debris and waste necessarily incident to said business. It was the opening into a chute running down into the cellar; the dirt as it accumulated was swept up daily, and into the hole, from whence it fell down to the cellar where it was gathered up and taken away or destroyed. In size it was about fourteen inches square ; it was situated one inch from the side wall of the room, and prior to the alterations had been protected from approach on one side by a rafter or girder which ran to the center of the ceiling, and on the other side by a railing about a foot from it, the railing serving the additional purpose of fencing a small room used as a shop to repair the sewing machines operated by the employees. It is not disputed that while so protected the hole was perfectly safe. A short time prior to the accident, in the course of the alterations referred to, the railing and machine shop were moved into the shirt room where they were needed, leaving the hole protected only on one side by the wall of the building and on
If the hole had been in the middle of the room, near a passage way, or where persons were accustomed to pass and repass in the regular course of business, it would have been perhaps a question for the jury whether leaving it uncovered, or insufficiently protected, even for a short space of time, was not negligence. But here was a small hole in the floor on the extreme side of the building, within one inch of the wall, outside of the ordinary walks of any one, which had always been carefully guarded until the alterations rendered it necessary to take the guards away; which was being used constantly during the alterations to get rid of the sweepings; which was only open for from two to four days while the alterations were in progress, and only open then when not in actual use ; which was intended to be, and was permanently covered as soon as the alterations were finished. And even as it was the plaintiff had to pass the obstruction of the girder before he fell into it. The defendants could not have anticipated such an accident as this as likely to flow from the condition of the hole at that time, and they are not to be held to a rule which would prevent the possibility of an accident. If they took reasonable care to provide a safe room for their em
None of the essential facts being in dispute the defendants had the right to call upon the court to declare the law. We are of opinion that the points referred to should have been affirmed.
It was not error to refuse the defendants’ third point, in the precise phraseology in which it was worded. But we think it was error to refuse the fourth point. If the plaintiff knew of the hole in the floor before the accident, and continued working in the room without complaining to the defendants or manager of the business, and calling his or their attention to the danger, so that it might be remedied, under all the authorities he took the risk of accident. It was said in Mansfield Coal Company v. McEnery, 10 Norris 185: “ It has been repeatedly held, in fact there is no conflict of authority upon this question, that where an employee has knowledge of machinery being defective and dangerous, and in the course of his employment continues to use it without notifying his employer of such defect and asking him to repair, he voluntarily accepts the risk, and cannot in case of injury from such cause recover damages therefor.”
We also sustain the last assignment. Under the evidence the learned judge would have been justified in giving a binding instruction to find for the defendants.
None of the other assignments requires discussion.
Judgment reversed.