Franczak v. Nazareth Cement Co.

• Decision Date: 03 March 1910
• Docket Number: 127-1909
• Citation: 42 Pa.Super. 263
• Parties: Franczak v. Nazareth Cement Company, Appellant
• Court: Pennsylvania Superior Court

42 Pa.Super. 263

Franczak v. Nazareth Cement Company, Appellant

No. 127-1909

Superior Court of Pennsylvania

March 3, 1910

Argued December 8, 1909 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Northampton Co.-1908, No 33, on verdict for plaintiff in case of John Franczak v. Nazareth Cement Company.

Trespass to recover damages for personal injuries. Before Stewart, J.

The facts are stated in the opinion of the Superior Court.

The court charged in part as follows:

[When it comes to the appliances and the methods, which in this case would refer to this car and to this track, and the method of operating this car when it was to receive this rock that was dumped into it, there the rule of law is that this cement company would have discharged its duty to the plaintiff if it had furnished him with appliances of ordinary character and reasonable safety, and the former, that is, the ordinary character of this car or truck would be the test of its reasonable safety, because anything that is reasonably safe would be a car or a method that was safe according to the usages and habits and the ordinary risks of the business. What the people who are in that business would ordinarily use is what you want to get your minds on. The cement company is not bound to get the very latest thing by way of invention, or the very latest improvement that may be adopted. It is not what you think you would have used; that is not the test, but what was the appliance or the machinery that was ordinarily used by people in that line of business. And where a company furnishes that method of doing business, which is the ordinary method, it discharges its full duty toward its employees or workingmen.]

[Now, the plaintiff, by these superintendents, some of whom had some years of experience, some of whom have had experience in two or three or four plants and have observed what was done in these various cement plants, has undertaken to prove that this car should have had brakes, or that they should have used a block either of wood or of stone, and that having in view the fact that the defendant company was accustomed to dump large weights of stone of a ton or two into these cars at an angle of forty-five degrees, at a height which the witnesses have testified to, and which, as I remember it (although it is for you) was something over two feet, that dumping in that way, at that angle, had a tendency to make this car move forward by the stone falling in it, particularly when it fell toward the front of the car, and that they, in view of these circumstances should have had a brake, or should have used a block either of wood or of stone.

The defendant, on the other hand, has called witnesses also, men of experience, and they have testified as to their knowledge of the various plants with which they are connected, a number of them had experience in different plants, and they have said, as I remember their testimony (although it is for you), that the method which the defendant used was a reasonably safe method according to the usual practice of people in that business in this county and the other counties, and that it was not dangerous; and they ask you to say that you cannot convict them of any negligence by reason of the fact that they did not furnish the plaintiff with the kind of tools and appliances which the law would compel them to furnish.

The burden is on the plaintiff to satisfy you by the weight of the evidence of his contention with reference to this matter. If you believe that the defendant did all that the law required, according to this test which I have laid down, then your verdict would be in favor of the defendant in this case.]

[Now, gentlemen of the jury, it is for you to say, taking into connection the fact that this plaintiff saw, as I remember the testimony (although it is for you), six or seven cars that were brought up and loaded on that morning, whether he ought to have seen that this car would move forward in the way that the witnesses say it moved on this morning and caused this accident. If you believe that that movement of the car would not have been seen by a man of ordinary experience and understanding, that it was something which the defendant should have specially instructed the plaintiff about, then it would be some evidence of the defendant's negligence upon that branch of the case, because it is the defendant's business to give warnings of dangers of that sort if you believe that they existed in this case.]

[Was there anything in this case said by Brish to this man, John Franczak, because in my view of the case it is very important indeed. If Brish did not tell John that he had plenty of time when that car was approaching about fifteen feet off, as I remember it, being pushed as it must have been by Lewis Masurok and the other Hungarian who is not here, being pushed up when it was about fifteen feet off and when John had that stone in his hand about to throw over into the quarry, and when Brish himself was telling the men in the quarry below to look out, if he did not say those words to John, then John when he undertook to throw that stone over and to get back in time to avoid this accident would be guilty of contributory negligence.]

[But, if, on the other hand, you believe that Brish said this and that John relying on the judgment of his foreman instead of going over to the mill side, as I remember his testimony, he intended to do, relying upon what Brish said, went back and put the stone over the quarry and then in attempting to get back to the other side was caught between the car and the post, he would not be guilty of contributory negligence.]

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Errors assigned were various rulings on the admission of expert testimony, quoting the bill of exceptions, and above instructions, quoting them.

Affirmed.

G. F. Coffin, of Reeder & Coffin, for appellant. -- The plaintiff was bound to make out a case clear of contributory negligence and this may be properly described as a burden, though a negative one: Heiss v. Lancaster, 203 Pa. 260; McDonald v. Iron & Coal Co., 135 Pa. 1; Dooner v. Canal Co., 171 Pa. 581; Cypher v. Coal Co., 149 Pa. 359; Bentley v. Planing Mill Co., 38 Pa.Super. 172; Schlemmer v. Buffalo, etc., Ry. Co., 222 Pa. 470.

The general rule is that opinion evidence whether expert or nonexpert is inadmissible in respect of the dangerous character of work, situations, appliances, etc., when all the facts can be ascertained and made intelligible to the jury, or when the subject is such as men in general are capable of comprehending and understanding: Dooner v. Canal Co., 164 Pa. 17; Graham v. Penna. Co., 139 Pa. 149; Cunningham v. Bridge Works, 197 Pa. 625; Bardsley v. Gill, 218 Pa. 56.

Calvin Smith, of Smith, Paff & Laub, for appellee. -- The duty of the defendant company is set forth in Rummel v. Dilworth, Porter & Co., 131 Pa. 509; Bannon v. Lutz, 158 Pa. 166; DeGrazia v. Piccardo, 15 Pa.Super. 107; McCray v. Varnish Co., 7 Pa.Super. 610; Lillie v. Foundry Co., 209 Pa. 161.

The plaintiff was not guilty of contributory negligence: Doyle v. Pittsburg Waste Co., 204 Pa. 623; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Maines v. Harbison-Walker Co., 213 Pa. 145.

An employee is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary use in case of latent dangers, and in such case he is not chargeable with the assumption of the risk involved: Cunningham v. Bridge Works, 197 Pa. 625.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

HENDERSON, J.

The plaintiff charged the defendant with negligence in three respects: failure...