Fuhrmeister v. Wilson

• Decision Date: 01 October 1894
• Docket Number: 116
• Citation: 30 A. 150,163 Pa. 310
• Parties: August Fuhrmeister v. Samuel C. Wilson et al., Appellants
• Court: Pennsylvania Supreme Court

30 A. 150

163 Pa. 310

August Fuhrmeister v. Samuel C. Wilson et al., Appellants

No. 116

Supreme Court of Pennsylvania

October 1, 1894

Argued January 11, 1894

Appeal, No. 116, July T., 1893, by defendants, from judgment of C.P. No. 3, Phila.Co., Dec. T., 1892, No. 138, on verdict for plaintiff.Reversed.

Trespass for personal injuries.Before FINLETTER, P.J.

At the trial it appeared that plaintiff was employed in a mill at Hancock street and Montgomery avenue, Philadelphia, owned by his employers, Ring & Bro. Plaintiff was employed on the lower or ground floor.Defendants were tenants of plaintiff's employers, and occupied the third and fourth floors of the mill.On July 13, 1892, a driver of Firth &amp Foster delivered to defendants several bags of wool which they had purchased from his employers.

Plaintiff described the accident as follows: "I was on the first floor sorting a bag of wool, and there was some cotton amongst it, and I sorted that out, and while I was engaged in doing that I heard a wagon come up on the platform, and I saw the chain where we hoist the stuff off the wagon.I was engaged in sorting that bag of wool about half an hour, and I got through with my work and I took the bag and folded it up and I saw it was the driver of Firth & Foster's dye works, and the man was standing on the back of the wagon with his head down like this and he was always a lively man and I thought he was sick, and I spoke to him while I was folding the bag up, and he made a remark about the hot weather, and I said it was terrible hot especially where the sun was against a high building, and we were talking together for a while and I put the bag away, and as I came back Mr. Corrigan, the driver, asked me to hand him his hat, which had fallen down on the platform, and I stooped down and picked it up, and as I straightened up to hand it to him these bags came down on me and knocked me down, and I was taken away."

Plaintiff and one of his witnesses testified that no hoisting had been done for fifteen minutes before he left his work.

John Corrigan, the driver, testified for plaintiff: "Q.Do you know how long the bags had been up there when the accident happened?A.They could not be hanging at all, because from the time they started to hoist, and while they were going up my hat fell off, and I asked Gus to get my hat for me and he said he would, and they threw down another rope to tie the bags, and when I turned around to fasten the other bags this stuff was going up, and it could not be hanging there very long. . . .Cross-examined: Q.From the time you started it up until the man handed you your hat, and you heard him groan, there was no time elapsed in which the bags could hang there at all?A.No, sir."

The court charged in part as follows:

"This action is brought by the plaintiff to recover damages for injuries alleged to have resulted from the negligence of the defendants or of the defendants' employees.To recover it must be clearly established to your satisfaction, first, that the defendant or his employees were negligent, and, secondly, that the plaintiff himself was not negligent in any manner contributing to the injury.Unless both of these propositions are established by the evidence your verdict must be for the defendant.You understand that the defendant is responsible for the act of those in his employment, and [it appears from the evidence that at this time they were using the lift in and about the business of the defendant.]They were raising the bags of wool from the platform to the room above, which was occupied by the defendant.They were in sole charge of the lift, and it therefore became their duty to use the lift in a careful and proper manner, and to exercise all the care necessary for the protection of any one who might be about the premises, or who might be subject to the dangers which would result from it.[They had charge of the lift, therefore, from the time the goods were delivered on the platform until they were raised to the room in which they were working.]

"From the evidence in this case it appears that the bags slipped from the rope by which they were being raised from the platform to the room above.I think there can be no controversy about that because it is in evidence that the rope itself did not break, and these very same bags were subsequently raised by that same rope.Therefore it may be taken as being clearly established that the bags themselves slipped from the fastenings.It is your duty to ascertain from the evidence whether they slipped from the rope because they had not been properly fastened in it.[If you find from this evidence that they were not properly fastened, then the negligence of the defendant is established.] . . . .

"There is this further remark to be made in relation to the question of time: It might very well be that the bags were securely fastened in order to lift them to the room in which they were to be stored, and were not sufficiently fastened to allow them to remain there for ten or fifteen minutes swinging and swaying in the wind.These are questions for you to consider.It might very well be that they were sufficiently fastened for all ordinary purposes, and if that were so it was not necessary to have them hang in the air for ten or fifteen minutes, or for any indefinite time.If they did remain there, for ten or fifteen minutes, that would be evidence of negligence on the part of the defendant.Therefore I shall ask you, in rendering your verdict, if it should be for the plaintiff, to find as special facts in the case, first whether the lift was in operation, and, secondly,...