Folk v. Schaeffer
| Decision Date | 23 May 1898 |
| Docket Number | 450 |
| Citation | 186 Pa. 253,40 A. 401 |
| Parties | Richard B. Folk v. Lewis Schaeffer, William S. Merkel and John Bertolette, trading as Schaeffer, Merkel & Co., Appellants |
| Court | Pennsylvania Supreme Court |
Argued February 28, 1898
Appeal, No. 450, Jan. T., 1897, by defendants, from judgment of C.P. Berks Co., August T., 1894, No. 76, on verdict for plaintiff. Affirmed.
Trespass to recover damages for personal injuries. Before ENDLICH, J.
The facts appear by the opinion of the Supreme Court, and by the previous report of the case in 180 Pa. 613.
Defendants' points and the answers thereto among others were as follows:
11. There is no testimony in the case from which the jury could find that the defendants were guilty of negligence. Answer Declined. [1]
12. The plaintiff's own testimony shows that the accident occurred through his negligence. Answer: Declined. [3]
13. Under all the testimony in the case the verdict must be for the defendants. Answer: Declined. [2]
Verdict and judgment for plaintiff for $2,162.50. Defendants appealed.
Errors assigned were (1-3) above instructions, quoting them.
The judgment is affirmed.
Cyrus G. Derr, with him D. Nicholas Schaeffer, for appellants. -- The mere fact of an accident occurring is not evidence of negligence, and in this case the breaking of the apparatus constructed for the purpose of raising the iron hood to the top of the smokestack, without any evidence of faulty construction, was insufficient to have warranted the court in submitting the matter to the jury: Easton v. Neff, 102 Pa. 478; Mixter v. Imperial Coal Co., 152 Pa 396; Baker v. Allegheny Valley R.R., 95 Pa. 215; Prescott v. Ball Engine Co., 176 Pa. 464.
When an employee, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure: Brossman v. Lehigh Valley R.R., 113 Pa. 498; Nuss v. Rafsnyder, 178 Pa. 397; Bemisch v. Roberts, 143 Pa. 8.
This case, on the question of contributory negligence, is very similar to the case of Kinney v. Corbin, 132 Pa. 347; Sykes v. Packer, 99 Pa. 465.
J. H. Jacobs, with him Rothermel Bros. and H. P. Keiser, for appellee, cited Dixey v. Phila. Traction Co., 180 Pa. 401; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Prescott v. Ball Engine Co., 176 Pa. 459; Clark v. Soule, 137 Mass. 387; VanDusen v. Letellier, 78 Mich. 502; Bessex v. Ry. Co., 45 Wis. 482; Woodward v. Shumpp, 120 Pa. 458; Rummell v. Dilworth, 111 Pa. 343; Rummel v. Dilworth, 131 Pa. 509.
Before STERRETT, C.J., GREEN, McCOLLUM, DEAN and FELL, JJ.
When the record of a previous trial of this case was before us the judgment was reversed because of the admission of what we considered irrelevant testimony, but we then expressed the opinion that the case could not have been taken from the jury. See 180 Pa. 613. The testimony at the second trial was substantially the same as that at the first, and all of the specifications of error relate to the refusal of the court to give peremptory instructions for the defendants.
The plaintiff was on an elevated platform assisting fellow-workmen in raising from the ground, sixty feet below a hood which was to be placed on the top of a smokestack. The block and tackle in use were fastened to the top of a piece of timber fourteen feet long and four inches square, which stood on the platform, and was held in place by guy lines. One of the guy lines consisted of two pieces of rope tied together. The knot by which they were tied became undone or slipped, and the weight of the hood drew the timber against the stack, and the plaintiff, who was standing under the block and tackle, was struck and thrown to the ground. The work preliminary to hoisting the hood was done under the supervision of one of the defendants, who gave directions as to the size of the timber to be selected from a pile in the yard, as to the ropes to be used for guys, and who tied the knot which slipped and caused the accident. There was no direct proof of want of care in tying the knot, and the conclusion that it was improperly tied was an inference from the fact that it came untied....
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Wyldes v. Patterson
... ... especially applicable. Hannan v. American Steel & Wire ... Co. 193 Mass. 127, 78 N.E. 749; Folk v ... Schaeffer, 186 Pa. 253, 40 A. 401; Cleary v. General ... Contracting Co. 53 Wash. 254, 101 P. 888; Stewart v ... Ferguson, 164 N.Y ... ...
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Wyldes v. Patterson
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