Levin v. Clad & Sons, Inc.

• Decision Date: 16 February 1914
• Docket Number: 239
• Citation: 244 Pa. 194,90 A. 570
• Parties: Levin v. Clad & Sons, Inc., Appellant
• Court: Pennsylvania Supreme Court

90 A. 570

244 Pa. 194

Levin v. Clad & Sons, Inc., Appellant

No. 239

Supreme Court of Pennsylvania

February 16, 1914

Argued January 12, 1914

Appeal, No. 239, Jan. T., 1913, by defendant, from judgment of C.P. No. 1, Philadelphia Co., June Term, 1907, No. 1710 on verdict for plaintiff in case of Isaac Levin v. V. Clad &amp Sons, Inc. Affirmed.

Trespass to recover damages for personal injuries. Before BREGY, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $3,800 and judgment thereon. Defendant appealed.

At the trial, plaintiff's witness, John D. Conner, being on the stand, was asked:

"Q. It has been testified that the plunger or upper die had a round shank with a thread on it and was inserted in a die which had a complementary thread upon it, will you please tell the court and jury whether such a machine is a dangerous or safe machine?

"(Objected to by counsel for the defendant.)

"(Objection overruled.)

"(Exception noted for defendant by direction of the court.)

"A. It would not be safe for anything but round work." (5)

Plaintiff's witness, Frank Bowers, being on the stand, was asked:

"Q. It has been testified that the upper die or stamp or plunger was inserted in the head by virtue of a screw on a round shank, state whether such a machine is a safe or dangerous machine.

"(Objected to by counsel for the defendant.)

"(Objection overruled.)

"(Exception noted for the defendant by direction of the court.)

"A. It is not safe for irregular shop punching unless secured against turning." (6)

Errors assigned, were various assignments referred to in the opinion of the Supreme Court, and (5, 6) rulings on evidence.

The assignments of error are all overruled and the judgment is affirmed.

Albert L. Moise, with him Samuel D. Matlack, and W. W. Smithers, for appellant.

James Gay Gordon, with him Simon C. Raken, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff had the sight of his right eye destroyed by a splinter of steel thrown from a machine which he was operating in the defendant's plant. At the time, he was cutting from a sheet of German silver peculiarly shaped strips of metal, presenting in outline a narrow, elongated ellipse. This was done by a machine with a ram or plunger, at the lower end of which was attached an adjustable head bearing a knife, or punch, similar in outline to the metal strips; the plunger moved up and down in a vertical direction descending upon a cutting die, into which it was supposed to fit; thus when a sheet of the metal was properly placed and the machine operated, the plunger descended upon the die and the metal was pressed or cut between their converging edges into the desired shape. On the evidence presented the jury could have found, and we must assume from the verdict that they did find, that the splinter of steel which pierced the plaintiff's eye was broken from the edge of the punch, and that this was caused by the latter being out of alignment and not descending squarely upon the die. A verdict was rendered for the plaintiff; judgment was entered, and the defendant has appealed.

The first assignment of error complains because the court below allowed the plaintiff to amend his statement of claim after the statute of limitations had run, and the second assignment asserts that, under the pleadings as they stood at the time of trial, there was no issue properly framed. It appears that the original declaration fixed April 22, 1907, as the date of the accident, whereas, in point of fact, it occurred on April 26th of that year. When first called for trial, a motion to amend the averment of date was granted, and the case was continued on a plea of surprise. Thereafter counsel for the plaintiff filed an affidavit in support of a formal rule to show cause why the amendment should not be allowed; this rule was made absolute, and the defendant was granted an exception to "the action of the court in permitting the said amendment." It is now claimed that the amendment was tantamount to an assertion of a new cause of action, and that, since the plaintiff did not file a new declaration and rule the defendant to file a new plea, there was no proper issue for trial. We are not impressed with the legal argument in support of these assignments, and we are satisfied that in point of fact the defendant suffered no material harm. The change of date in no sense altered the cause of action; hence, another plea was not required and it was not essential that the plaintiff should file a second statement of claim. (See, Good Intent Stage Co. v. Hartzell, 22 Pa. 277; Erie City Iron Works v. Barber, 118 Pa. 6; Little v. Fairchild, 195 Pa. 614.)

The third specification of error complains of the admission of testimony given by a fellow workman of the plaintiff in which he described the condition of the machine, to the effect that the punch was slightly turned so that it did not squarely meet the die as it should have done had the machine been in proper working order. It appears that this witness did not make his examination until about an hour or an hour and a half after the accident, and the appellant contends that "he had no knowledge whether or not anything had been done to the machine between the time of the accident and the time that he claims to have found the dies out of alignment." However this may be, testimony to the same effect was given by two other of plaintiff's witnesses without objection, and a witness for the defendant, who was in a position to know, testified that the machine remained in the same condition after the accident as before, stating, "Nothing was done to the machine at all that day"; the defendant's foreman likewise testified that he had given it a test at half past two in the afternoon,...