Diehl v. Lehigh Iron Co.

• Decision Date: 09 March 1891
• Docket Number: 124
• Citation: 21 A. 430,140 Pa. 487
• Parties: ALFRED DIEHL v. LEHIGH IRON CO
• Court: Pennsylvania Supreme Court

21 A. 430

140 Pa. 487

ALFRED DIEHL v. LEHIGH IRON CO

No. 124

Supreme Court of Pennsylvania

March 9, 1891

Argued February 3, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LEHIGH COUNTY.

No. 124 July Term 1890, Sup. Ct.; court below, No. 65 April Term 1888, C.P.

On March 15, 1888, Alfred Diehl brought trespass against the Lehigh Iron Company, for negligence causing to him personal injuries. The defendant's plea was not guilty.

At a second trial of the cause, on April 30, 1890, the following facts were shown:

The defendant company was operating several iron furnaces. In November, 1887, one of the furnaces having gone out of blast the plaintiff and others were engaged as employees of the defendant in removing from the stack the refuse matter known as salamander, deposited in the bottom of it. This salamander being in a solid mass, it took a long time for it to cool and it was so hard that it had to be blasted out. On the evening of November 19, 1887, the plaintiff, who had then been engaged in this employment, working on the night shift for about a week, was injured by the premature explosion of a dynamite cartridge. He testified that, between five and six o'clock in the evening, he and the other men engaged on the night shift were standing at the furnace, when Harrison Bortz, the defendant's superintendent, came and inquired why they were not at work; that the witness replied that the furnace was too hot to work in, and that they would let it stand till morning, so that the salamander might cool off that Bortz then said: "Oh, pshaw, we have dynamite here a-purpose, that wont explode from heat," and added that the company were in a hurry to have the work done, that it was not too hot to work and the men must go on with the work without delay; that the men then went to work, and the plaintiff drilled a hole into the salamander, which was so hot that the drill had to be taken out from time to time to cool it off, and it got hotter and hotter the further down the hole was drilled; that, after completing the hole, the plaintiff put some sand in the bottom of it, and then lowered a dynamite cartridge by means of the fuse attached to it: "Q. Did this explosion happen instantaneously after you had loaded the hole, or did it take some time? A. It didn't take half a second, I don't suppose; just time enough to put the sand down, and I couldn't light the fuse and hadn't time to get away."

The plaintiff testified, on cross-examination, that he had put off several blasts of dynamite in the salamander prior to November 19th, and that he knew the work he was engaged in was a dangerous work "in one sense of the word" and required a great deal of care on his part. Bortz, the superintendent, was not present when the accident occurred. He denied, testifying for the defendant, that any conversation between himself and the plaintiff, about using dynamite, occurred at the time and place mentioned in the plaintiff's testimony, or that he had ever said to the plaintiff that it would not explode in heat, although he admitted saying to the plaintiff, on one or two occasions prior to November 19th, that dynamite was not as dangerous to use as black powder. Portions of the testimony are quoted in the opinion of the Supreme Court, infra.

At the close of the testimony, the court, ALBRIGHT, P.J., charged the jury in part as follows:

It is necessary that you should have a theory as to what the wrong is that is to be imputed to Mr. Bortz, if any wrong is to be imputed to him, and you will bear in mind that the law is that a man who goes into the employment of another undertakes all the risks of that employment. It is taken to be part of the contract of employment, that the employee takes the risks of the employment he engages in. It is also the law that one who engages to work along with other workmen, cannot hold his employer responsible, if an accident happens to him by reason of the negligence, or carelessness, or wrongdoing of a fellow workman. So, the employer, in this case the Lehigh Iron Company, was not responsible for any accident or injury that might happen to its employee, Alfred Diehl, in the line of his employment. But this general statement must be qualified by saying that the employer was under an implied contract to exercise reasonable care, and to provide and maintain suitable instruments and means to carry on the work in which its servants were engaged. The employer must provide tools, machinery, materials and appliances which are reasonably safe and suitable for the purposes for which they are used. If he fails to do this, and an accident happens, resulting in injury to his employee as a consequence, then it may be said that the employer has been guilty of negligence. If there was negligence in the present case, in what did it consist?

You will see at once that if any blame is to attach to the company defendant, and any damages are to be awarded against it, it must be by reason of what Mr. Bortz did, or omitted to do, because it is not claimed here that any other officer of the company, or any one else acting for the company, did anything which brought about Diehl's injury. It must have been the fault of Bortz, if it was the fault of any one on the part of the company. If he was at fault, then in what did his fault consist? It did not consist in employing men to clean out this furnace, for that was a lawful and necessary thing to do. It did not consist in saying to Mr. Diehl, "It is not too hot, go in and work," for that was the mere expression of an opinion.

I will say here, in passing, that the law is that a servant is not bound to risk his safety in the service of his master, and he may, if he sees fit, decline to do what his master tells him to do. So, when Bortz said to Diehl, if he did say so, "It is not too hot, go in and work," that was not negligence. Mr. Diehl testifies that he objected to going in at the time in question, and that Mr. Bortz said they should go in and should work at it. This, it is said, was shortly after five o'clock in the evening, and the plaintiff and the other men then did go in and work, and that some time between eight and nine o'clock in the evening the accident happened. I say to you, gentlemen, that Mr. Bortz's urging the men to go into the stack and work, was not an act of negligence on his part, and does not make the company liable, because the men could go in or not as they saw fit.

There is, however, a principle in law that where the employee is directly under the eye of his master, and he does a thing which he might know was dangerous, and for which he could blame nobody but himself if an accident happened to him under ordinary circumstances, yet, if the master, being present, commands him, urges him to do the dangerous act, and he does it and is injured, then the master may be held responsible. But, at the time the accident in the present case happened, Mr. Bortz was not present. According to the plaintiff's testimony, he had not been there for two hours or more; and so, the principle to which I have just alluded does not apply, and the company can not be held liable on that ground. [According to my view of this case, gentlemen of the uury, the manner in which you are to determine the liability or non-liability of the defendant for this injury to the plaintiff is this: Did the defendant company provide and order to be employed in this work an appliance, or a means, which was reasonably safe to be used under the circumstances, or not?]

The plaintiff, and another witness for him, testify that the plaintiff objected to working in this furnace at the time, and said that the water should be permitted to run in during the night, and that the next morning the work could go on, and that it was too hot to go on then; and probably he testified that something was said about its being too hot to use powder, and he further testifies that then Mr. Bortz said that it was not too hot, and that they should go on with the work, and that there was dynamite on hand, and that dynamite was safe, and that it did not explode by heat. Mr. Bortz denies that he said this; in fact, he denies that he was at the place where the plaintiff says this conversation took place, on the evening of the accident a few hours before it happened, though Bortz does admit that he had talks on one or several occasions with the plaintiff about the work going on, and that he urged that it should be carried on without delay, and that dynamite could be used, and that dynamite was not as dangerous in a hot place as black powder; and it may here be remarked that according to all the evidence it is not as dangerous in that regard.

You will bear in mind that when the using of the dynamite was spoken of by Bortz, according to both his own version and that of the plaintiff, the hole had not yet been bored in which the cartridge afterwards exploded prematurely and caused the injury, and you must bear in mind that the plaintiff did afterwards bore the hole, he and those with him, and that he put the cartridge in the hole. Gentlemen if, under the circumstances, the plaintiff should have known that this cartridge would explode by reason of the great heat in the bottom of the hole, and he yet put the cartridge in, then he was guilty of contributory negligence, even though the defendant had also been to blame in sending him there; and, in fact, under that view of the case, if you find that that is the correct view, he would have been guilty of all the negligence appearing in the case, and ought not to recover, because he knew that the dynamite was to be used for the very purpose of exploding and shattering this refuse. He knew that it was to go off, and if, knowing it to be an explosive, which he undoubtedly did know, just as...