Irwin v. Leuten Brick Co.

• Decision Date: 24 February 1915
• Docket Number: 165-1914
• Citation: 59 Pa.Super. 150
• Parties: Irwin v. Leuten Brick Company, Appellant
• Court: Pennsylvania Superior Court

59 Pa.Super. 150

Irwin v. Leuten Brick Company, Appellant

No. 165-1914

Superior Court of Pennsylvania

February 24, 1915

Argued October 21, 1914

Appeal by defendants, from judgment of Municipal Court, Phila. Co.-1914, No. 6, on verdict for plaintiff in case of William J. Irwin and William J. Irwin, in his own right, v. Leuten Brick Company.

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

At the trial it appeared that plaintiff, a boy seventeen years old was injured on March 21, 1913, while working at a clay mixer in defendant's brick manufacturing plant.

The circumstances of the accident are stated in the opinion of the Superior Court.

Verdict and judgment for William J. Irwin, Jr., for $ 750, and verdict for William J. Irwin for $ 125, on which judgment was entered for $ 100, all above that amount having been remitted.

Errors assigned were the action of the trial judge in reading a portion of the plaintiff's statement to the jury; alleged variance between the allegata and probata; refusal of binding instructions for defendant.

Affirmed.

Henry A. Hoefler, for appellant. -- It was improper to read the statement: Reese v. Hershey, 163 Pa. 253; Hollinger v. York Rys. Co., 225 Pa. 419.

The variance was fatal: Wagner v. Standard S. Mfg. Co., 244 Pa. 310; Wilkinson Mfg. Co. v. Welde, 196 Pa 508; Goodman v. Coal Twp., 206 Pa. 624; Stewart v. DeNoon, 220 Pa. 154.

The act of 1905 was not pleaded or offered in evidence: Hogarty v. Phila. & R. R., 245 Pa. 451.

The plaintiff was guilty of contributory negligence in cleaning the machine while it was in motion: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311; Stehle v. Jaeger Auto Mach. Co., 220 Pa. 617; Valjago v. Carnegie Steel Co., 226 Pa. 514; Best v. Williamsport Staple Co., 218 Pa. 202.

L Pearson Scott, with him Thomas M. Woodward, for appellee.

Before Rice, P. J., Orlady, Head, Kephart and Trexler, JJ.

OPINION

KEPHART, J.

William J. Irwin, Jr., seventeen years of age, was employed by the defendant as a temperer of clay. He worked at the pugmill or clay mixer, which is about seven feet long, two and one-half feet wide and of the same depth, the box being of an oval shape. It has a shaft inside, to which were attached twenty knives used to cut or mix the mass of clay as it passes through the mixer. A platform is placed at the top. A belt eighteen inches wide carries the clay to the mixer. This belt is operated by gear wheels five and six feet above the platform. As the clay passes through the mixer it is forced into a die at the end, where it is made into a brick. It was the duty of the workman to keep the mixer clean. This he did while standing on the platform, by the use of a spade put into the clay, cleaning it away from the sides, where it would sometimes stick and clog the mixer. While in the performance of this act, his spade came in contact with one of the knives. This jerked the spade from his hand, causing his hand to be thrown back over his head, striking the exposed gear wheels, from which the injury complained of resulted. The young man testifies that he was instructed by the superintendent to clear or clean the mixer while it was in motion, that this was a part of his duties.

The first assignment of error complains of the trial court reading to the jury that portion of the plaintiff's statement with reference to the gear wheels not being properly guarded as required by the act of assembly. The learned judge merely read what he might very well have stated from his own knowledge as the legal basis of the plaintiff's claim. This assignment is without merit.

The second assignment sets up a variance between the allegata and probata. It is quite true that " as long as the case of plaintiffs was being presented the defendant could not know that it would not be made out as pleaded, and only when plaintiffs rested was it known that it had not been made out and the nonsuit was promptly asked for:" Stewart v. De Noon, 220 Pa. 154, 159, 69 A. 587. This is not a license for the defendant to permit the evidence forming the basis of the plaintiff's cause, here complained of, to be presented without specific objection, so that the trial court and the litigant might have an opportunity to correct it. It is not the office of a plea of variance to enable a party to wait, taking a chance as to the result of the verdict, and then, if it is adverse, to rely on such plea to secure an absolute reversal or a new trial. As was stated by our Brother Head, in Clark v. Millett, 57 Pa.Super. 287, " No objection was made to the admission of the evidence as we have it on the ground that it was not in harmony with the pleadings. Had such objection been made and sustained, the plaintiff could have moved to amend her declaration so as to make its allegations conform with the proof offered. The defendants having waived any such objection, and having chosen to abide the result of the testimony actually offered and admitted, it was not the function of the learned trial judge to raise this objection of his own motion and assign it as a reason for refusing to take off the compulsory nonsuit." To the same effect is Shaffer v. Bahr, 57 Pa.Super. 48, 51. We are not satisfied from reading the plaintiff's statement that the evidence offered was such a variance as claimed by the appellant. The gear wheels were certainly part of the machinery looking toward the operation of the mill, and we are not convinced that the court would...