Baker v. Allegheny Valley R. Co.
| Decision Date | 04 October 1880 |
| Citation | 95 Pa. 211 |
| Parties | Baker et al. v. Allegheny Valley Railroad Co. |
| Court | Pennsylvania Supreme Court |
June 16, 1880
1. The duty which a master owes to his servant is to provide him with safe tools and machinery. When he does this he does not however engage that they will always continue in the same condition. Any defect which may become apparent in their use it is the duty of the servant to observe and report to his employer.
2. It is not negligence in the master if the tool or machine breaks, whether from an internal original fault, not apparent when the tool or machine was at first provided, or for an external apparent one produced by time and use, not brought to the master's knowledge.
3. A different rule, however, prevails where the tool or machinery is perishable. The master is bound to know that such tool or machinery will only last a limited time, and it is his duty to renew instruments of this character at proper intervals.
4. Declarations of an agent of the master made after an accident will not bind the master unless they are of such a character as to show that he had previous knowledge of the defect in the machinery.
5. An employee of a railroad company was killed while at work by the breaking of a rope on a derrick in use and belonging to the company. It was shown that the rope externally appeared sound, but had been in use for two or three years, and continually exposed to the weather, and there was evidence that it was actually rotten when the break occurred. There was evidence also that such a rope, after exposure for a year or more, becomes unsound, although this one betrayed no outward sign of decay. Held, that there was evidence for the jury upon the question whether such a rope was a sound one, and if not the railroad company would be liable for one injured by reason of such unsoundness.
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
Error to the Court of Common Pleas of Clearfield county Of May Term 1880, No. 151.
Trespass on the case by Bridget Baker and others, the wife and infant children of Bartley Baker, deceased, against the Allegheny Valley Railroad Company, to recover damages for the death of said Bartley Baker, alleged to have been caused by the negligence of defendant. Plea, " not guilty."
Baker was one of a gang of men working on a gravel train, and, at the time he was killed, in 1876, was engaged along with others in hoisting heavy stones upon the cars of the train.
In loading the stones, the men used a derrick, which consisted of an upright wooden mast, about twelve inches in diameter at the ground, and about fifty feet in height, and held in place by four guy ropes attached to the top of the mast, and the other end of the ropes anchored to posts in the ground. To the mast of the derrick was attached a crane with pulley-blocks, tackle, & c??
On the morning the accident happened the men had loaded two or three stones. Baker was standing on one of the cars, in the act of obeying an order of the man in charge of the work, and a heavy stone was being raised, when one of the guy ropes gave way on account of the rottenness of the rope, and the mast of the derrick fell with great force, striking Baker across the breast, from the effects of which he died within an hour after.
At the time Baker was injured, he was working under the direction of Daniel Nolan, who then had, under the defendant company, the exclusive charge and direction of the gravel train, and men connected with it, and had authority from the company to hire and discharge the men who worked in his gang.
William McGregor was superintendent of the work where Baker was killed.
The derrick was furnished by the defendant company, and had not been used for a long time previous to the day Baker was killed. It was an old structure, erected in 1872 or 1873, and it was in evidence the guy ropes had been exposed constantly to the weather, without change, for a long time; were old decayed and rotten, and were unsafe and unfit for the purposes for which the derrick was used at the time it fell.
There was also testimony of experts, to the effect that such ropes after being exposed to the weather for a year, were unsafe and unfit to sustain a heavy weight.
The plaintiffs proposed to prove that Daniel Nolan, the superintendent of the gravel train, a few minutes before the accident happened, said to the witness, or in his hearing that one part of the men should go to one side of the derrick, as it was not safe; this order not being given to Bartley Baker, or in his hearing, to the witness' knowledge. Objected to, because the offer is immaterial and irrelevant; because no order there given by Nolan could affect defendants or make the company liable in damages, he being a co-employee; and because such order may have been given and the witness not have heard it; and the testimony does not show such order was not given to Baker, if it was material to prove that it was not. Objections sustained.
Plaintiffs' second offer was as follows: What did Mr. McGregor say, if anything, at the time the rope was examined, immediately at the time of the accident, as to its cause?
Defendants objected to the question because it was immaterial and irrelevant under the proof in the stage of the cause; and because the plaintiffs had not shown that McGregor held such a relation to the defendants as would make his declarations admissible to affect the defendants. Objections sustained.
When the plaintiffs closed their case the court, on motion of defendants, entered a compulsory nonsuit, and the court in banc subsequently refused to take it off. The plaintiffs then took this writ, alleging that the court erred in rejecting the foregoing offers of evidence, and refusing to take off the nonsuit.
Frank Fielding and George A. Jenks, for plaintiffs in error.--Nolan had charge of the gravel train and the men; had authority from defendants to hire and discharge these men; his agency was established by the evidence in the cause, and this agency made his acts and knowledge those of the defendants: Woodwell & Co. v. Brown et al., 8 Wright 121. The declarations of Nolan made a few minutes before the accident occurred, concerning the unsafe condition of the derrick, were, therefore, admissible: Mullan v. Steamship Co., 28 P. F. Smith 25; Hanover Railroad Co. v. Coyle, 5 Id. 396; Wharton on Negligence, sect. 1173. The same rule and authorities will apply to the declarations of McGregor, the superintendent.
It was the duty of the defendants to furnish Baker with safe instrumentalities with which they required him to work. He had a right to rely upon the soundness and safety of the derrick, without his inspection or examination of it. It was furnished by the company, and should have been made and maintained safe and sufficient for the purpose for which it was used.
Baker is not chargeable with want of ordinary care in not ananticipating the negligence of the defendants. It does not matter whether the defendants, through their officers or agents, knew or did not know that the ropes of the derrick were rotten from exposure to the weather; it was their duty to examine--not to know it, in such case, was gross negligence. The first duty of Baker to his employer was obedience, and it cannot be argued that because he went to work under a derrick, by order of his employer's agent where he had not worked before, without first examining the structure, that he thereby waived the duty his employers owed him, and that he assumed all risks of danger, even an extraordinary peril: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 145; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Caldwell v. Brown, 3 P. F. Smith 453; Fraser v. Pennsylvania Railroad Co., 2 Wright 103; Patterson v. Pittsburgh and Connellsville Railroad Co., 26 P. F. Smith 393; O'Donnel v. Allegheny Valley...
To continue reading
Request your trial