Argued
February 6, 1893
Appeal, No. 410, Jan. T., 1892, by defendant, Hiram E. Lutz
from judgment of C.P. Delaware Co., March T., 1891, No. 31,
on verdict for plaintiff, Bridget M. Bannon.
Trespass
for personal injuries. Before WADDELL, P.J., of 15th judicial
district, specially presiding.
The
facts appear by the opinion of the Supreme Court.
The
court charged in part as follows:
"[If
Bannon was not negligent, if under the evidence you are
satisfied that he did all he was required to do, and Mr. Lutz
was negligent, then your verdict will be for the plaintiff
and will be in such an amount as will compensate her for the
injury or the loss she has sustained. There will be no wild
or extravagant estimate of these damages; you must ascertain
as near as you can what will compensate her for the loss she
has sustained. It is simply a question of compensation. What
in your judgment as well as you can ascertain from the
evidence furnished you, what will compensate her for the loss
she has sustained? They have given you the age of this man,
thirty-eight years of age; a man, such as the testimony says,
in active life, working daily, earning from $13.50 to $14.00
a week, I think; that is the amount Mr. Lutz paid him while
in his employ. You will see what, under all the evidence,
will compensate this lady for the loss which she has here
sustained, and you will give her a verdict for that amount.]
If, however, you should determine that there has been no
negligence on Mr. Lutz's part your verdict will be for
him, or if you conclude that John Bannon was negligent then
your verdict will be for Mr. Lutz also."
Plaintiff's
points were among others as follows:
"1.
The plaintiff is entitled to a verdict if the jury believe
that the death of her husband was due to the absence of steam
in defendant's still, and that steam as a preventive of
explosion was at the time in common and ordinary use, and was
required to render the still reasonably safe according to the
usages, habits and ordinary risks of the business, and that
this was or ought to have been known to the defendant, and
that the decedent by reason of inexperience and want of
instructions from defendant or his agents was ignorant of the
increased risk occasioned by the absence of steam, and that
the risk was not apparent to him and he had no opportunity to
ascertain it. Answer: I affirm that point; it is in
accordance with the law as I understand it, and as I have
laid it down to you." [1]
"2.
An employer is bound to provide ordinarily safe and adequate
machinery, and is guilty of negligence in failing to do his
duty in this respect. If the jury find that steam as a
preventive of explosions was at the time of Mr. Bannon's
death in common and ordinary use, and was required to render
the still reasonably safe according to the usages, habits and
ordinary risks of the business, and that this was or ought to
have been known to the defendant, and that Mr. Bannon would
not have been killed had steam been used, the defendant was
in law guilty of negligence. Answer: I affirm that point,
gentlemen, with the addition that the use of steam as I
understand it to be expressed here, was for making the stills
safe in taking off the manheads. Not the general use of steam
for distillation, but the use of steam so as to make the
removal of these manheads safe. If that is the ordinary and
general usage of the trade, then the point is correct."
[2]
"3.
If the jury find that the absence of a hinge or swing or
other safety appliance to the manhead was the cause of Mr.
Bannon's death, and that some appliance of this kind for
the protection of the man removing the heads of the stills
was at the time in common and ordinary use, and was required
to render the operation of removing the heads reasonably safe
according to the usages, habits and ordinary risks of the
business, and that this was known or ought to have been known
to the defendant, he was in law guilty of negligence in
failing to provide some safeguard or appliance for the
protection of his men. Answer: I affirm that point, as you
will see it is in accordance with what I have already
expressed to you." [3]
Defendant's
points were among others as follows:
"4.
If the jury believe that Bannon exposed himself in front of
the open still after he had removed the head and placed it on
the platform, he was guilty of negligence, and the plaintiff
cannot recover. Answer: I do not feel at liberty to go to
that extent. You must ascertain from all the evidence in the
cause whether or not John Bannon was guilty of negligence; if
he was, then, as I have said to you, he cannot recover, and
those who now represent him cannot recover." [4]
"6.
The employer is not liable for the consequences of a
dangerous business; the risks and dangers of the business are
all assumed by the employee." Refused. [5]
"7.
If the danger be open, permanent and visible, the employee
assumes it, and if he is as much aware of the nature of the
machinery as the employer he cannot recover, even if the
machinery be less safe than some other in general use, or
there is a safer mode of doing the business. Answer: I cannot
affirm that point in its broad terms. I do not regard that as
the position of the courts on this question. I must disaffirm
the seventh point." [6]
"8.
If the employee thinks that his employer is conducting his
business in an unsafe way it is his duty to leave it, and he
cannot recover for injuries received by reason of the kind of
machinery, or mode of doing business which has been used and
practised for several years, and with which the employee was
familiar. Answer: I feel at some loss, gentlemen, to know
what to do with that point. In some particulars, it is in my
judgment correct, and in others it is incorrect. In my
judgment if the employee thinks that his employer is
conducting his business in an unsafe way, then it is his duty
to quit it; he cannot, in other words, dictate to his
employer how to conduct the business; but it is the duty of
the employer to furnish proper machinery to conduct it. In
other words, I make a distinction between a man conducting
his business, and furnishing appliances with which to conduct
it. He can conduct it as he thinks proper, and if the
employee don't like that way he must leave it. But when
he employs a man to work for him, the law imposes upon him
the duty of furnishing the proper appliances with which to do
that work. That is a duty which he cannot avoid the
responsibility of assuming." [7]
"10.
If Bannon knew that this still was operated without hinges or
cranes to the heads, and without steam injections, and under
the evidence he was bound to know it, then he assumed the
risks of the business operated without them, and Mr. Lutz is
not guilty of negligence in not providing them, and the
plaintiff cannot recover. Answer: I must regative that point,
gentlemen, as you will see from the points I have already
laid down." [8]
"Under
all the evidence in the case the verdict should be for the
defendant. Answer: I cannot say that, gentlemen; I have
nothing to say which way the verdict shall be. That would
require me to take the case entirely out of your hands, and I
think it is my duty to submit the question to you under the
instructions I have given you, and I therefore leave the case
in your hands, again warning you against any sympathy on the
one side or the other entering into your minds. This is a
mere question of business. We are called on to perform
duties, pleasant or unpleasant, however they may be, they are
imposed upon us by the law, and you are not permitted to
allow your sympathies to be for the one side or the other.
You will take the case, gentlemen, and make such disposition
of it as the law and evidence will warrant." [9]
Verdict
and judgment for plaintiff for $3,000. Defendant appealed.
Errors
assigned were (1-10) instructions, quoting them.
The
specifications of error are overruled, and the judgment is
affirmed.
Geo. B
Lindsay, for appellant, cited: Bemisch v. Roberts,
143 Pa. 1; Diehl v. Iron Co., 140 Pa. 487; Sykes
v. Packer, 99 Pa. 465; New York, Lake Erie & Western
R.R. v. Lyons, 119 Pa. 324; Hoffman v. Clough,
124 Pa. 505: Rummell v. Dilworth, 111 Pa. 343;
Myers v. B. & O.R.R., 150 Pa. 386; Hauser v.
Central R.R., 29 W.N. 471.; Carroll v. Pa.
R.R., 12 W.N. 348; Pa. R.R. v. Mooney, 126 Pa.
244; Marland v. Pittsburgh & Lake Erie R.R., 123 Pa.
487; Mensch v. R.R., 150 Pa. 598; Kehler v.
Schwenk, 144 Pa. 348; Ford v. Anderson, 139 Pa.
261; Melchert v. Smith Brewing Co., 140 Pa. 448;
Augerstein v. Jones, 139 Pa. 183; Simpson v.
Pitts. Locomotive Works, 139 Pa. 245; Pittston Coal
Co. v. McNulty, 120 Pa. 414; West Mahanoy Township
v. Watson, 116 Pa. 344; Brossman v. Lehigh Valley
R.R., 113 Pa. 490; P.W. & B.R.R. v. Kennan, 103
Pa. 124; Green & Coates St. Pass. Ry. v. Bresmer, 97
Pa. 103; Pittsburgh & Connellsville R.R. v.
Sentmeyer, 92 Pa. 276; Lewis v. Seifert, 116
Pa. 628; Drew v. Coal Co., 3 Cent. R. 389; Hart
v. Coke Co., 131 Pa. 125; Hawk v. R.R., 11 A.
R. 459; Mack v. St. Ry., 8 Pa C.C.R. 305; Titus
v. R.R., 136 Pa. 618; Lehigh Coal Co. v. Hayes,
128 Pa. 294; Iron Ship Building Works v. Nuttall,
119 Pa. 149; P. & R.R.R. v. Hughes, 119 Pa. 301; P.
& R.R.R. v....
