Honor v. Albrighton
| Decision Date | 22 March 1880 |
| Citation | 93 Pa. 475 |
| Parties | Honor <I>versus</I> Albrighton. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent
Error to the Court of Common Pleas, of Luzerne county: Of January Term 1878, No. 195.
A. Ricketts, John Lynch, C. R. Buckalew and W. J. Buckalew, for plaintiff in error.—It is not claimed that the plaintiff can recover, if the injury was occasioned by the wilful or reckless conduct of his son; but that the question whether his conduct was of that character — was without justification or proper excuse — should be submitted to the jury.
By the statute 7 and 8 Vict. c. 15, sect. 21, mill owners are required to fence all their mill gearing and certain other parts of machinery while in motion, for manufacturing purposes. Under this statute it has been decided, that the requirements of the statute being absolute, it is no defence to show that fencing would not have lessened the danger of the particular machinery in question; and that the omission to have a fence where it is required, is an act of negligence, for which damages may be recovered irrespective of the penalty in the statute: Doel v. Sheppard, 5 E. & B. 856; Caswell v. Worth, 5 Id. 849. In addition, it may be observed, that in our statute a right of action is expressly given to the party injured, by the 24th section, and he is not left to resort alone to the principles of the common law in connection with the statute, for his remedy.
C. L. Lamberton and Andrew T. McClintock, for defendants in error.—The statute of 23 and 24 Vict. c. 151 (1860), is very similar to our mine ventilation act, and it has been held in Wilson v. Merry, L. R., 1 Scotch and Divorce Cases 341, that the statute cannot have the effect of giving the plaintiff a right of action which he could not have had without it.
The evidence is uncontradicted, that the defendants' breaker was of the best and most secure known to, or used in the region; that the guard against danger from the rolls was perfect, when the plank was in place; that it was in place the morning of the day of the accident. The defendants were not, therefore, negligent. They had provided the best and safest arrangement against accident used in their business. The removal of the plank intended and used to guard the rolls, was the negligence of a co-employee, and defendants were not therefore liable.
The judgment of the Supreme...
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