Leonard v. Herrmann

• Decision Date: 26 March 1900
• Docket Number: 441
• Citation: 45 A. 723,195 Pa. 222
• Parties: Leonard v. Herrmann
• Court: Pennsylvania Supreme Court

45 A. 723

195 Pa. 222

Leonard v. Herrmann

No. 441

Supreme Court of Pennsylvania

March 26, 1900

Argued February 14, 1900

Appeal, No. 441, Jan. T., 1900, by plaintiff, from judgment of C.P. Lebanon Co., March T., 1898, No. 172, on verdict for defendant in suit of Claudius Leonard v. Adolph Herrmann trading as Herrmann, Aukman & Co. Affirmed.

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

At the trial it appeared that plaintiff was employed by defendant in operating a freight elevator. On August 13, 1897, plaintiff was injured while operating the elevator. He claimed that the accident was due to the failure of defendant to provide a guard rail on the elevator. He testified as to a conversation which he had with defendant's superintendent as follows:

"Previous a week or probably eight or ten days before, me and Mr. Reizenstein was conveying goods downstairs in a box truck with four wheels and I steadied the box and it came near shoving me off. I told him, says I, 'Mr. Reizenstein, this is dangerous, you ought to have a guard around here.' He says, 'I know it ain't safe, I will have it fixed,' he says, 'you just go on.'"

The overwhelming evidence was that the elevator was of the kind in ordinary use.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were in giving binding instructions for defendant.

The instruction by the learned judge was clearly right, and the judgment is affirmed.

Thomas H. Capp and J. Marshall Funck, for appellant, cited Patterson v. Dushane, 115 Pa. 334; Howard Express Co. v. Wile, 64 Pa. 201; Bank v. Wirebach, 106 Pa. 37; School Furniture Co. v. Warsaw School District, 122 Pa. 494; Lerch v. Bard, 153 Pa. 573; Patterson v. Pittsburg, etc., R.R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Wagner v. Jayne Chemical Co., 147 Pa. 475.

Howard C. Shirk, for appellee, cited Kehler v. Schwenk, 144 Pa. 357; Dooner v. Del. & Hud. Canal Co., 171 Pa. 581; Brossman v. Lehigh V.R.R. Co., 113 Pa. 490; Bellows v. Pa. & N.Y. Canal & R.R. Co., 157 Pa. 51; Boyd v. Harris, 176 Pa. 484; Fulford v. L.V.R.R. Co., 185 Pa. 329; Patterson v. Pittsburg, etc., R.R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Wagner v. Jayne Chemical Co., 147 Pa. 475; Kehler v. Schwenk, 151 Pa. 505; Titus v. Bradford, etc., Ry. Co., 136 Pa. 618.

Before MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE FELL:

An employer is under an obligation to his employee to furnish reasonably safe machinery and appliances, but it is not in every case for a jury to determine the standard of safety. If it were there would be no means by which an employer could protect himself, as his judgment founded on his experience or the advice of those best able to advise him would be subject to review by others often utterly incompetent to form any intelligent opinion of the matter. The legal test of reasonable safety in machinery or methods is ordinary use, and a jury cannot be permitted to set up any other. The rule and the reasons on which it is founded are clearly stated by our Brother MITCHELL in Titus v. R.R. Co., 136 Pa. 618, as follows: "Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machiney and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous...