Augerstein v. Jones

• Decision Date: 05 January 1891
• Docket Number: 149
• Citation: 139 Pa. 183,21 A. 24
• Parties: CHARLES AUGERSTEIN v. JONES ET AL
• Court: Pennsylvania Supreme Court

21 A. 24

139 Pa. 183

CHARLES AUGERSTEIN v. JONES ET AL

No. 149

Supreme Court of Pennsylvania

January 5, 1891

Argued November 8, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No 149 October Term 1890, Sup. Ct.; court below, No. 382 June Term 1889, C.P. No. 1.

On April 26, 1890, a summons was served in trespass brought by Charles Augerstein against Jones & Laughlin, Limited, to recover damages for personal injuries averred to have been caused by the negligence of defendants. Issue.

At the trial on April 15, 1890, it was shown that on December 21 1888, Charles Augerstein, the plaintiff, a locksmith from Germany, was employed by the defendants and put at once to the work of grinding metal castings on an emery wheel. The wheel was about two feet in diameter, hung on a horizontal shaft, and geared to run ordinarily from 800 to 1000 revolutions per minute. About the wheel were four upright iron posts, fitting at their tops into four holes, in the underside of an iron plate about two feet by eighteen inches in size and an inch thick. The plate merely rested upon the posts, which passed up partly through the holes. Through the top of the plate was an opening in which ran the upper edge of the wheel, the surface of the wheel being kept nearly even with the upper surface of the plate. The grinding was done by holding the article ground firmly upon the plate and upon the wheel. The wheel was nearly new, and had been in use for about two months. On December 24th, it burst into two pieces one of which flying upwards struck the plate and threw it into the plaintiff's face, as he was bent over it breaking his jaw. The negligence of the defendants complained of was the failure to fasten the plate securely upon the upright posts.

John Huber, called by the plaintiff, testified that he had worked at the defendant's mill for several years before the accident; knew the wheel and described its construction; had worked at it himself, and described the manner in which the injury occurred. On cross-examination, he was asked:

Q. From your knowledge of machinery and emery wheels, can you say whether you regard this as a safe machine, so that it could be used by a prudent man with safety to himself?

Objected to, that it is asking the witness's opinion as an expert.

By the court: Objection sustained. ^[*]

Q. Was it a safe machine the last time you used it before this accident? A. Well, I couldn't see nothing dangerous in it. Q. Was it at that time such a machine as could have been used by a prudent man without danger to himself?

Objected to.

By the court: Objection sustained. ^[*]

John Lang, called for the plaintiff, was asked on direct examination:

Q. Then, if there had been bolts up through and nuts on top, could that have happened?

Objected to.

By the court: Objection overruled. ^[*]

Defendants' counsel moved that the testimony of the said John Lang be stricken out, as incompetent and irrelevant, the witness having testified that he knew nothing whatever about this machine within six months of the accident.

By the court: Motion overruled; exception.

Dr. C. P. Leip, called for the plaintiff, was asked on direct examination:

Q. If you had had that patient at his own home, or some other place, and treated him as you did, what would your services be worth?

Objected to.

By the court: Objection overruled. ^[*]

Q. And, aside from the hospital boarding and nursing, what would the surgical and medical services, rendered to him, be worth to a patient outside the hospital?

Objected to.

By the court: Objection overruled. ^[*]

At the close of the testimony, the court, COLLIER, J., charged the jury as shown in the opinion of the Supreme Court, and answered a point presented for instruction as follows:

The court is requested by the defendants to charge:

2. Under all the evidence in this case, the verdict must be for the defendants.

Answer: Refused.

The jury returned a verdict for the plaintiff for $1,000. A rule for a new trial having been discharged and judgment entered, the defendants took this appeal, assigning for error:

1, 2. The refusal of the defendants' offers.

3. The admission of the plaintiff's offer. ^[+]

4. The refusal of the defendants' motion. ^[+]

5. The admission of the plaintiff's offers.

6. The refusal of the defendants' point.

Judgment reversed.

Mr. John D. McKennan, for the appellants:

A man of the most ordinary intelligence and observation could have discovered at a glance that, if the emery wheel should burst, the plate over it might be thrown up and cause him injury, whether it was secured by bolts or not. Having assumed this plain but remote risk, the plaintiff was not entitled to recover damages for the injury which happened to him: Patterson v. Railroad Co., 76 Pa. 389. Moreover, to entitle the plaintiff to recover damages in a suit of this sort, it must be shown that the machine was in fact defective, that the injury was occasioned by such defect, and that the defendant had notice of it, or would have had notice of the defect if he had exercised ordinary care: Wood's Master & S., 751, 770.

Mr. A. M. Watson (with him Mr. James H. Porte), for the appellee:

The general rule that the employer is bound to provide and keep ordinarily safe appliances and machinery, and must not expose his employees to dangers that, in good conscience, he could and ought to provide against, applies to this case, and the evidence sustains the verdict: Pittsburgh etc. R. Co. v. Sentmeyer, 92 Pa. 280; McKee v. Bidwell, 74 Pa. 218.

Before PAXSON, C.J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE GREEN:

The plaintiff, being in the employment of the defendants in the service of grinding boxes on an emery wheel, was injured by the bursting of the wheel, and brought this action to recover damages for the injury. The negligence charged against the defendants as the cause of the injury, in the plaintiff's statement, was: "That said emery wheel was placed in a plate or rest, which said plate or rest was unsafe, insecure, and dangerous to be used when said emery wheel was in motion, of which the defendants then and there had full knowledge, and of which the plaintiff had no knowledge; that it was the duty of the said defendants to guard, fasten, secure, and protect such plate or rest, so containing said emery wheel as aforesaid, so that the plaintiff might work thereat without danger to life or limb;" and that while the plaintiff was at work grinding boxes on the wheel it broke, and the plate or rest was thrown against the plaintiff's head, and injured him.

The learned court below put the case to the jury in this manner "You will observe that the negligence charged here is that this iron plate was insecure and unsafe, and that when the wheel burst it was not sufficiently secure to protect him; that, if it had been sufficiently secured and fastened, he would not have been injured. That is the question you are to try. We do not try whether the machinery was properly oiled, or whether it wabbled, or how the wheel broke; because it is alleged that if this plate had been fastened with screws at the top, as they allege it is now, this man would not have been hurt. That is the allegation. Bear that in mind, because that is what we are to try." The court then proceeded to say that, to determine the defendants' liability, the jury must find some neglect of duty in regard to the plate; that the defendants must furnish reasonably safe appliances for their employees, and, if they were told that the plaintiff was an unskilled man, they must inform him of anything dangerous. The court further said: "Now, what was the duty of the defendants in this case? Emery wheels will burst; a grindstone of any kind will burst. Everybody knows that, and it is not necessary to give proof that it may burst. But the mere bursting of a grindstone, unless there is some defect in it of which the proprietors were informed, will not enable a person to recover damages from the proprietors. If that were the law, we might as well shut up our works and go to something else. But, if the accident happened by reason of any neglect on the part of the proprietors, they would be liable. In this case, if they knew that putting these bolts through, and screwing them on top of the plate, in case it did burst, would protect a man, then they were bound to do that, and that is one of the questions for you. Now, how is that? Here was a plate. If it had been secured on top with screws through it, as was done since, would that have protected this man when the stone burst? If it would, and they knew, or had reason to know, that that would be a protection, then the defendants were bound to do that much. . . . So, the question here is simply this: Was it negligence on the part of the defendants not to have put these uprights through, and to have screwed them on top of the plates, and, if they had done that, would that have prevented this injury? If you find that to be the case, then that would be negligence on the part of the defendants, and the plaintiff would be entitled to recover." The substantial meaning of this is, that, if the accident could have been prevented by screwing down the plate, the defendants were negligent in not doing so, and the plaintiff could recover. This method of treatment makes the fact of the accident and its possible prevention the test of the negligence of the defendant which produces legal liability. It has been so many times decided, and by so many courts of last resort, that this is not the legal test of liability for negligence, especially where the plaintiff is an employee, and the action is against his employer, that it seems a work of...