Gralka v. Worth Bros. Co.

• Decision Date: 22 May 1914
• Docket Number: 76
• Citation: 245 Pa. 467,91 A. 860
• Parties: Gralka v. Worth Bros. Company, Appellant
• Court: Pennsylvania Supreme Court

91 A. 860

245 Pa. 467

Gralka v. Worth Bros. Company, Appellant

No. 76

Supreme Court of Pennsylvania

May 22, 1914

Argued April 2, 1914

Appeal, No. 76, Jan. T., 1914, by defendant, from judgment of C.P. No. 2, Philadelphia Co., March T., 1913, No. 245, on verdict for plaintiffs in case of Emil Gralka, by his Father and Next Friend, Adolph Gralka, and Adolph Gralka v. Worth Brothers Company. Reversed.

Trespass to recover damages for personal injuries. Before STAPLES P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for Emil Gralka for $3,000, and for Adolph Gralka for $500 and judgment thereon. Defendant appealed.

Errors assigned, among others, were in refusing to direct a verdict for defendant, and to enter judgment for defendant n.o.v.

After the most careful review of all the testimony submitted by the plaintiff, we can find nothing in it which justified the finding that the dynamite which was in a little wooden box in the shanty in June, 1912, was the same that was found by the boys in a paper box in the following January. In this connection it may be proper to say that it nowhere appears, as counsel for appellee state in their printed argument, that after the accident the appellant claimed as its own the dynamite left in the shanty by the boys. The first assignment of error is sustained, the judgment is reversed and is here entered for the defendant.

John G. Johnson, with him Henry P. Brown, for appellant, cited: Lonzer v. Lehigh Val. R. Co., 196 Pa. 610; Keiser v. Lehigh R.R. Co., 212 Pa. 409; Schley v. R.R. Co., 227 Pa. 494; Cohen v. Transit Co., 228 Pa. 243; Walters v. Bridge Co., 234 Pa. 7; Shannon v. Knight of the Maccabees, 54 Pa.Super. 634; Henderson v. R.R., 144 Pa. 461; Carpenter v. Miller, 232 Pa. 362; Thompson v. R.R., 218 Pa. 444; Leithold v. R.R., 47 Pa.Super. 137; Gillespie v. McGowan, 100 Pa. 144; Gillis v. R.R., 59 Pa. 129; Breckenridge v. Bennett, 7 Luzerne L.R.R. 95.

William T. Connor, with him John R. K. Scott, for appellees, cited: Finkbeiner v. Solomon, 225 Pa. 333; Loughlin v. Penna. R.R. Co., 240 Pa. 174; Powers v. Harlow, 53 Michigan 507; Nelson v. McClellan, 31 Wash. 208; Mattson v. Railroad Co., 95 Minn. 477; Olson v. Investment Co., 108 Pacific Rep. 140; Crabb v. Wilkins, 109 Pacific Rep. 807; Tibbitts v. Spokane, 117 Pacific Rep. 397; Vills v. Cloquet, 119 Minn. 277; Victor v. Smilanich, 54 Colo. 479; Henderson v. Refining Co., 219 Pa. 384; Millum v. Coal Co., 225 Pa. 214; Penna. Railroad Co. v. Wise, 87 Pa. 447; Speer v. Railroad Co., 119 Pa. 61; Brunner v. Telephone Co., 151 Pa. 447; Dormer v. Paving Co., 16 Pa.Super. 407; Devlin v. Electric Co., 198 Pa. 583; Rauch v. Smedley, 208 Pa. 175; Heh v. Gas Co., 201 Pa. 443; Moon v. Matthews, 227 Pa. 488; Kurtz v. Tourison, 241 Pa. 425; Parker v. Matheson Motor Car Co., 241 Pa. 461.

Before BROWN, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

Worth Brothers Company is a corporation owning and operating blast furnaces and rolling mills at Coatesville, this State. On January 18, 1913, several boys went into a shanty owned by the company and found a box of dynamite in it. They took a portion of this up to the side of a hill, where they built a fire, and one of them threw some of the dynamite into it. As a result of the explosion that followed Emil Gralka, one of the boys -- then seven years of age -- lost an eye. From the judgments recovered by him and his father against the defendant company -- found by the jury to have negligently left the dynamite in the shanty -- it has appealed.

The burden was upon the plaintiff below, who sued for himself and his injured son, to show by competent testimony that the defendant had been guilty of the negligence with which he charged it. The averment upon which he relied in asking for the recovery of damages was that it had negligently permitted dynamite to be in its shanty on January 18, 1913, and for a long time prior thereto, and that the injuries sustained by his son had resulted from this negligence. The shanty was open and accessible to the boys, and if the dynamite which they found in it had been put or left there by the defendant, or by one of its employees in the course of his employment, or had been allowed to remain in the building by the defendant after knowledge that it was there, the charge of negligence would have been sufficiently proved. In passing upon the contention of learned counsel for appellant, that a verdict ought to have been directed in its favor, the first inquiry must be as to the sufficiency of the proof submitted by the plaintiff in support of his averment of the negligence of the defendant, without regard to what it may have shown by way of defense.

In the spring of 1912 the defendant company constructed a road through a part of its property, and, in the construction of the same, it was necessary to use dynamite for blasting purposes. George Shamonski, called by the plaintiff testified that he had acted as a labor boss for the defendant in the construction of the road; that he left its employment in June, 1912; that all of the blasting was over at that time, and that seven or eight days before he left he saw a little wooden box in the shanty containing dynamite. Another witness, a former employee of the defendant, called by the plaintiff, testified that all of the blasting had been done in the spring of 1912. There is no testimony that any dynamite was ever seen in the shanty from June, 1912, down to January 18, 1913, nor was there any testimony that, during that interval, the defendant company had used dynamite for any purpose whatever. The boy who found the dynamite in the shanty on January 18, 1913, testified that it was in a paper box, and the case went to the jury under the following instruction: "How will you reconcile the dynamite that was found in the paper box with the dynamite that was left there in June, 1912, if you believe the latter was in a wooden box? That, to the mind of the court, is one of the important questions for you to consider in this case; and unless you can reconcile it, and unless you can find from the testimony, not outside of the testimony, but from the testimony, as to the difference in the...