Card v. Stowers Pork-Packing & Provision Co.
| Decision Date | 15 May 1916 |
| Docket Number | 418 |
| Citation | 98 A. 728,253 Pa. 575 |
| Parties | Card, Appellant, v. The Stowers Pork Packing and Provision Company |
| Court | Pennsylvania Supreme Court |
Argued February 23, 1916
Appeal, No. 418, Jan. T., 1915, by plaintiff, from final order of C.P. Lackawanna Co., March T., 1913, No. 499 refusing to take off nonsuit, in case of Claude Card v. The Stowers Pork Packing and Provision Company. Affirmed.
Trespass to recover damages for personal injuries. Before STAPLES P.J., specially presiding.
The opinion of the Supreme Court states the facts.
The trial judge entered a nonsuit, which the court in banc subsequently refused to take off. Plaintiff appealed.
Error assigned was in refusing to take off the nonsuit and in refusing to allow plaintiff to amend his statement of claim.
The assignments of error are overruled and the judgment is affirmed.
T. A. Donahoe, with him F. J. Helriegel, for appellant.
The amendment asked by plaintiff did not constitute a new cause of action and should have been allowed: Phillips v. Erie County Elec. Co., 249 Pa. 445; Trego v. Lewis, 58 Pa. 463; Collins v. Philadelphia & Reading Ry. Co., 244 Pa. 210; Wright v. Eureka Tempered Copper Co., 206 Pa. 274; Morris v. McNamee, 17 Pa. 173; Schmelzer v. Chester Traction Co., 218 Pa. 29; Stoner v. Erisman, 206 Pa. 600; Terrell v. Pittsburgh Rys. Co., 58 Pa.Super. 371; Jackson v. Gunton, 26 Pa.Super. 203; Hellings v. Wright, 14 Pa. 373; Stewart v. Kelly, 16 Pa. 160; Krutlies v. Bulls Head Coal Co., 249 Pa. 162; Levin v. Clad & Sons, 244 Pa. 194; Rick v. N.Y., Chicago & St. Louis R.R. Co., 232 Pa. 553; Little v. Fairchild, 195 Pa. 614; Root v. O'Neill, 24 Pa. 326; Erie City Iron Works v. Barber, et al., 118 Pa. 6; Rodrigue v. Curcier, 15 S. & R. 81; Erie City Iron Works v. Barber & Co., 102 Pa. 156.
The questions of plaintiff's contributory negligence and defendant's negligence were for the jury: Freed v. C.S. Garrett & Son Co., 240 Pa. 17; Collins v. Philadelphia & Reading Ry. Co., 244 Pa. 210; Irwin v. Leuten Brick Co., 59 Pa.Super. 150; Fegley v. Lycoming Rubber Co., 231 Pa. 446; Lanahan v. Arasapha Mfg. Co., 240 Pa. 292; Clark v. Millett, 57 Pa.Super. 287; Obert v. Hammermill Paper Co., 249 Pa. 456; Papilios v. Best Mfg. Co., 58 Pa.Super. 70; McKee v. Crucible Steel Co., 213 Pa. 333; Hepple v. Edison Elec. Illuminating Co. of Pottsville, 240 Pa. 91; Lamb v. Philadelphia & Reading Ry. Co., 217 Pa. 564.
David J. Reedy, with him Welles & Torrey, for appellee. -- The petition for leave to amend the statement alleged a new cause of action barred by the statute of limitations and was properly refused: Mahoney v. Park Steel Co., 217 Pa. 20; Wolf v. Wolf, 158 Pa. 621; Dobra v. Lehigh Val. Coal Co., 250 Pa. 313; Amiano v. Jones & Laughlin Steel Co., 233 Pa. 523.
No negligence was shown: Charnogursky v. Price-Pancoast Coal Co., 249 Pa. 1; Durst v. Carnegie Steel Co., 173 Pa. 162; Schneider v. Philadelphia Quartz Co., 220 Pa. 548; Coleman v. Keenan, 223 Pa. 29; Ross v. Walker, 139 Pa. 42; Lehigh & Wilkes-Barre Coal Co. v. Hayes, 128 Pa. 294; McCombs v. Pittsburgh & Western Ry. Co., 130 Pa. 182; Devlin v. Phoenix Iron Co., 182 Pa. 109; Rick v. Cramp, 22 W.N.C. 79; Smith v. Allegheny County Light Co., 251 Pa. 486; Cooper v. Butler, 103 Pa. 412.
The plaintiff assumed the risk of his employment: Helfenbein v. Wohlfeld, 235 Pa. 302; Flaherty v. McClintic-Marshall Construction Co., 243 Pa. 580; Boyd v. Harris, 176 Pa. 484; Betz v. Winter & Goetz, 195 Pa. 346; Nuss v. Rafsynder, 178 Pa. 397; Derr v. Lehigh Val. R.R. Co., 158 Pa. 365; Diehl v. Lehigh Iron Co., 140 Pa. 487; Solt v. Williamsport Radiator Co., 231 Pa. 585; Booth v. Stokes, 241 Pa. 349; Keenen v. Waters, 181 Pa. 247; Bellows v. Pa. & N.Y. Canal & R.R. Co., 157 Pa. 51.
The plaintiff was guilty of contributory negligence: Jones v. American Caramel Co., 225 Pa. 644; Betz v. Winter & Goetz, 195 Pa. 346; Stoll v. Hoopes, 22 W.N.C. 159; Best v. Williamsport Staple Co., 218 Pa. 202; McEwen v. Hoopes, 175 Pa. 237; Barrientos v. Brennan, 249 Pa. 231; Snyder v. Longmead Iron Co., 244 Pa. 325; Carll v. Brown, 251 Pa. 273; Carroll v. Penna. Coal Co., 22 W.N.C. 439; Monongahela City v. Fischer, 111 Pa. 9; Weir v. Haverford Elect. Light Co., 221 Pa. 611; Lynch v. Erie, 151 Pa. 380; Butler v. Gettysburg & Harrisburg R.R. Co., 126 Pa. 160; DiMagnio v. Jefferson & Clearfield Coal & Iron Co., 251 Pa. 321.
Before BROWN, C.J., MESTREZAT, POTTER, MOSCHZISKER and WALLING, JJ.
Plaintiff was employed by defendant as engineer of its plant for the manufacture of artificial ice. It was his duty inter alia to oil the engine and machinery and in so doing to fill with oil a cup located some seven feet above the floor, to reach which it was customary for the engineer to stand with one foot on the top or cap of the grease box, which cap was an oval iron surface about fifteen inches in diameter and about two and one-half feet above the floor. At the same time the other foot rested on an iron frame close to said cap, as we understand the facts. Near to and below this cap was the main crank shaft which made eighty revolutions per minute.
While performing that duty on the morning of August 19, 1912, plaintiff's foot slipped from said iron grease box and was badly crushed by the pin of said crank shaft. So far as appears defendant had provided no other method of filling said cup with oil, and defendant's foreman had instructed plaintiff to do it in that manner. Plaintiff was an educated and experienced engineer, had held this position with defendant three weeks, testified that he knew it was dangerous to oil the engine in that manner and that he was a little afraid at the time. Oil and grease had accumulated on the floor and about the engine and had covered and saturated plaintiff's shoes making them very slippery; of all of which he had full knowledge before the accident. He made no request to be given any different method of filling said cup with oil, and did not take the precaution of stopping the engine before so doing, although it was under his control. No one else was present at the time of the accident, and he was in sole charge of the machinery and thoroughly familiar with the conditions there that morning.
Plaintiff's statement of claim as originally filed was practically a common law action for negligence, but, at the trial more than two years after the accident, he sought to amend the statement so as to charge the defendant with negligence by reason of alleged failure to guard the crank shaft as required by the Act of May 2, 1905, P.L. 352, although said statement had failed to aver facts sufficient to bring the case within the act. This amendment the trial court refused and rejected evidence offered on that branch of the case. At the close of plaintiff's evidence a compulsory nonsuit was granted on the ground of contributory negligence.
In our opinion the learned trial judge was right both as to the amendment and the nonsuit, and his conclusions are supported by the authorities to which he refers.
After the statute of limitations has run a plaintiff cannot by amendment shift his ground of complaint, introduce a new cause of action, cure a fatal defect in the pleadings, change his cause from a common law to a statutory proceeding, or deprive the defendant of any valuable right: Mahoney v. Park Steel Co., 217 Pa. 20; Martin v. Pittsburgh Rys. Co., 227 Pa. 18; Allen v. Tuscarora Val. R.R. Co., 229 Pa. 97.
True, under the Act of 1905 the rule of assumption of risk does not apply: Fegley v. Lycoming Rubber Co., 231 Pa. 446; Amiano v. Jones & Laughlin Steel Co., 233 Pa. 523. But it does apply here as the record does not present a case within that act. And the amendment asked for would have deprived defendant of a valuable right, to wit, the right of setting up that defense, which could not be done after the statute of limitations had become a bar.
Plaintiff was a licensed engineer with several years' practical experience. He knew the machinery and appliances with which he was working and the manner of doing the work; and better than any one else the slippery condition of his shoes and of the place on which he stood; and knew it was dangerous and therefore assumed the risk.
"Where risks incidental to employment, which are quite as well understood by the employee as by the employer, and from his familiarity with such risks such employee is equally able to measure the danger with his employer, no liability will attach to the employer for injuries sustained by the employee in consequence of exposure to such risks": Dellasala v. Josephine Furnace & Coke Co., 242 Pa. 591.
Where an employee continues to work at a place he knows to be dangerous, and voluntarily takes the chances of being injured, he cannot hold his employer liable for the...
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