232 Pa. 330 | Pa. | 1911
Opinion by
The plaintiff in this case was employed by the defendant company to aid in unloading heavy timbers, and in transferring them from one car to another. The defendant supplied ropes to be passed around the timbers, which were arranged in piles, so that a number of pieces could be lifted and swung over at one time. The necessary power for lifting the timbers was obtained from a steam engine operating a derrick or crane, connected with the ropes and tackle. During the early progress of the work, one of the ropes broke, the timbers fell, and the plaintiff was severely injured. It was charged that the rope by which the timbers were slung, and which was furnished as part of the apparatus, by the defendant, was not fit for use, and was supplied without a reasonably careful attention to its condition.. Upon the trial the jury were instructed that the plaintiff could not recover if there was anything about the appearance of the rope or sling, when it was placed in use, to indicate to him that it was not safe. Or if he failed to exercise proper care for his own protection, during the work. Or if good slings or ropes were supplied by defendant, which might have been used by the men, instead of the unfit rope. As to some of these matters there was discrepancy in the testimony; but as questions of fact, they were properly for determination by the jury.
In the first assignment of error counsel for appellant complain that the trial judge did not compel the plaintiff' to elect as between what they termed two wrongs which
In the second, third and fourth assignments, it is alleged that the trial judge erred in refusing to strike out the testimony of certain witnesses, because they did not identify completely the rope which they examined, and whose condition they described, with the rope which gave way at the time of the accident. We think the testimony of these witnesses was properly submitted to the jury. The identification of an object by a witness is necessarily an exercise of his judgment. The uncontradicted testimony showed that but one broken sling was seen on the job, as it was expressed. The coincidence in the admitted facts made it more reasonable to conclude that the rope which the witnesses examined and found in bad condition, was the one which had been in use, rather than to conclude that it was not identical with the latter. The coincidence was therefore properly laid before the jury as a guide to their judgment in deciding upon the probability of the pieces of rope being identical. In addition to the evidence of these men, to which objection was made, the plaintiff testified that he saw the broken rope lying on the ground after the accident, and that a Mr. Rice, who was in charge of the men, picked it up, and that he saw him go with it as far as the blacksmith shop-. There was also the evidence of the bridge foreman to the effect that he made an exami
In the sixth assignment of error counsel for appellant criticise the form of the reserved point which was, “We reserve as a question of law whether or not there is any evidence in the case upon which the plaintiff is entitled to recover.” The reservation in its form follows precisely that which was approved in Newhard v. Penna. R. R,. Co., 153 Pa. 417. Mr. Justice Dean there said (p. 426): “Whether there is any evidence of a fact essential to recovery is a pure question of law, and was decided to be a good reservation in Wilde v. Trainor, 59 Pa. 439, where Justice Shakswood most carefully considers the whole question, and examines all the authorities.” The proper form of a reservation was again thoroughly discussed and the essentials of a good reservation carefully pointed out by the present chief justice, in Casey v. Paving Company, 198 Pa. 348. The reservation here was unquestionably good. In any event, no harm was done to appellant in this respect, for the trial judge did not enter judgment n. o. v. All questions as to defendant’s right to binding instructions may be raised on this appeal, and they have been raised by the fifth and seventh assignments of error.
The accident for which recovery was sought occurred in the state of New York, and the case was therefore tried under the rules of law prevalent there. Counsel for appellant contend that the evidence does not disclose such negligence as would permit recovery under the law in New York. They rely upon the decision in Vogel v. Bridge Co., 180 N. Y. 373, in which it was held that when the employer had furnished a sufficient supply of ropes
While not necessary for the purposes of this case, yet it may not be out of place to note that the distinction which seems to have been made in New York has not been recognized in our own state, nor does it seem to embody the rule which prevails generally. In 26 Cyc. 1136, it is said: “It is not only the duty of a master to use ordinary care to furnish his servants with a reasonably safe place to work, and with reasonably safe machinery and appliances, but he must also, by inspection from time to time, and by the use of ordinary care and diligence in making repairs, keep them in a reasonably safe condition.” This expression of the rule is in line with our own decisions. Thus, in Baker v. Allegheny Valley R. R. Co., 95 Pa. 211, where the plaintiff's husband was killed under circumstances somewhat similar to those attending the accident in this case, it appeared that the rope which broke had been in use and exposed to the weather two or three years, perhaps more, and had become rotten and unsafe. Mr. Justice Sharswood said (p. 216): “It is the duty of employers to renew instruments of this character at proper intervals. The expense would certainly not be great and a due regard to the lives of their servants imperatively demands it.” In Lohr v. Philipsburg, 156 Pa. 246, Mr. Justice Mitchell refers to the duty laid down for an employer as being that of “not only furnishing safe tools to
Our examination of the record in this case satisfies us that the defendant had the full benefit of everything to which it was entitled under the law of the place where the accident occurred.
The assignments of error are overruled, and the judgment is affirmed.