Devlin v. Phoenix Iron Co.

• Decision Date: 15 July 1897
• Docket Number: 4
• Parties: William Devlin v. Phoenix Iron Company, Appellant
• Court: Pennsylvania Supreme Court

37 A. 927

182 Pa. 109

William Devlin v. Phoenix Iron Company, Appellant

No. 4

Supreme Court of Pennsylvania

July 15, 1897

Argued March 26, 1897

Appeal, No. 4, Jan. T., 1897, by defendant, from judgment of C.P. No. 3, Phila. Co., June T., 1895, No. 254, on verdict for defendant. Reversed.

Trespass for personal injuries.

The facts appear by the opinion of the Supreme Court.

Defendant's point and answer thereto were as follows:

Under the evidence your verdict should be for the defendant. Answer: Refused.

Verdict and judgment for plaintiff for $6,500. Defendant appealed.

Error assigned was above instruction, quoting it.

John G Johnson, with him Carrol S. Tyson, for appellant. -- When an employee after having an opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if he be subsequently injured by such exposure Nuss v. Rafsnyder, 178 Pa. 397; Butler v. Gettysburg, etc., R.R. Co., 126 Pa. 160; Bemisch v. Roberts, 143 Pa. 1; Lynch v. Erie, 151 Pa. 380; Maher v. Thropp, 35 A. 1057; McAndrews v. Burns, 39 N.J.L. 118; Nemier v. Riter, 36 A. 335.

The failure to replace the worn bitts by new ones was negligence on the part of the plaintiff or of his coworkmen.

After the employer had furnished a safe place in which to work and a proper storage for the round and chain, it had a right to rely upon its workmen removing the round and chain if, in the course of their work, their safety should so require.

A.S.L. Shields, with him J. Whitaker Thompson, for appellee. -- The defendant did not furnish a safe place for the plaintiff to work: Comben v. Belleville Stone Co., 36 A. 473; Hulehan v. Green Bay, etc., R.R. Co., 68 Wis. 520; Patterson v. Pittsburg, etc., R.R. Co., 76 Pa. 389; Ross v. Walker, 139 Pa. 42; Woodward v. Shumpp, 120 Pa. 458; Payne v. Reese, 100 Pa. 301.

Where it is shown that the employer did not conform to the ordinary usages of business in similar operations, it has been held to be evidence of negligence: Titus v. R.R., 136 Pa. 618; Augerstein v. Jones, 139 Pa. 183.

Where an inference can be drawn either way from the testimony the plaintiff cannot be nonsuited by reason of such testimony: Wilson v. Penna. R. Co., 177 Pa. 503; Railroad v. White, 88 Pa. 333; Railroad v. Werner, 89 Pa. 64.

The employer's duty in providing a safe place to work was violated when he did not remove the iron "round" after ample time for notice: Bennett v. Glass Co., 158 Pa. 120.

It was the duty of the coemployees, possibly, to inform the employer of the condition of the place, inasmuch as, owing to its weight, it was impossible for these men to move the obstruction, but if the employer had notice of its presence, and the length of time which elapsed justifies the assumption that he did, and he did not remove it within a reasonable time, he was, under all authorities, guilty of culpable negligence in this regard: Holden v. Fitchburg R.R., 129 Mass. 268; s.c. 2 Am. & Eng. R.R. Cas. 94.

The scope of duty within which a servant is entitled to protection is to be defined by what he is employed to perform, and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position: Kehler v. Schwenk, 151 Pa. 505.

In going into a place to work which had heretofore, to his knowledge, been practically secure from extraordinary risks, the plaintiff had a right to assume that the place was safe, without groping about to see whether there were pitfalls or obstructions in his path: Rummel v. Dilworth, 131 Pa. 509; Hoffman v. Clough, 23 W.N.C. 399.

Before GREEN, WILLIAMS, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

The plaintiff was an iron worker employed by the defendant company. It does not clearly appear how long he had been employed by the defendant, but it does appear that his work had been in the same room and nearly in the same place where the accident complained of happened, for two or three years. He had been, at least during all the time now spoken of, one of the gang of men at work in and around a pit in which blooms were cast, and from which they were lifted by machinery and loaded upon trucks for removal to some other part of the works. As the "fourth man" of this gang his business was to fasten the tongs upon the bloom which was to be lifted out of the pit, so that it could be raised and swung over the truck upon which it was to be loaded for removal. This was done by the use of bitts which clasped the bloom so firmly as to sustain its weight while it was being lifted and carried to the truck. On the night of the accident plaintiff was temporarily acting as "third man," whose business it was to guide the swinging bloom, by means of a long iron hook, into a position directly over the truck upon which it was to be loaded. While he was engaged in this way the bloom, which was at a red heat, slipped from the tongs and fell to the ground. The plaintiff stepped backwards to escape the red hot bloom and fell. Before he could get out of its reach it struck one of his legs and he was burned. He says that when he sprang backwards he came in contact with an obstruction on the floor of the mill which he could not see and of which he had no knowledge, and that on this obstruction he stumbled and fell. The presence of this obstruction was one of the things he complains of at the trial, and another was the fact that the bitts were too smooth to grasp the bloom with sufficient firmness to support its weight.

The defendant requested the learned judge of the court below to direct the jury to find in its favor, for the reason that no negligence on the part of the company had been shown, and because the plaintiff's negligence had contributed to his injury. The learned judge refused this point and submitted the question of the defendant's negligence upon the evidence relating to the obstruction on which it was alleged the plaintiff fell. This obstruction consisted of a "round" of iron about six inches in diameter and several feet in length. There was a chain with it and a few pieces of scraps lying near it. None of these articles belonged to that part of the mill, but had been improperly allowed to accumulate there by the inattention or want of care of the workmen themselves. There was a place provided by the defendant company for the storage of each of these...