Lininger v. Westinghouse Air Brake Co.

• Decision Date: 04 November 1904
• Docket Number: 72
• Citation: 59 A. 430,210 Pa. 62
• Parties: Lininger v. Westinghouse Air Brake Company, Appellant
• Court: Pennsylvania Supreme Court

59 A. 430

210 Pa. 62

Lininger v. Westinghouse Air Brake Company, Appellant

No. 72

Supreme Court of Pennsylvania

November 4, 1904

Argued October 24, 1904

Appeal No. 72, Oct. T., 1904, by defendant, from judgment of C.P No. 2, Allegheny Co., Oct. T., 1902, No. 641, on verdict for plaintiff in case of Benjamin Lininger v. Westinghouse Air Brake Company. Affirmed.

Trespass to recover damages for personal injuries.

At the trial the jury returned a verdict for $4,828 subject to question of law reserved.

On motion for judgment non obstante veredicto, FRAZER, P.J filed the following opinion:

Plaintiff an employee of defendant, brought this action to recover damages for injuries received while employed as an oiler at defendant's works at Wilmerding. On the morning of March 11, 1902, while in the discharge of his duties, plaintiff was injured by being caught between the main or line shafting and timbers used to support counter shafting. The counter shafting, not being properly bolted and fastened to the "I" beams which supported it, was drawn toward the main shafting by reason of the belting from some unknown cause becoming wrapped around the shafting which at the time was revolving at a rapid rate. Plaintiff had ascended his ladder, which was placed between the main and counter shafting, and was in the act of oiling the latter when the belting became entangled on the shafting, and by the moving toward the main shafting of the timbers used to support the counter shafting, was thrown against the main shafting and held between the two in a space of from ten to fourteen inches wide until released by other employees. The accident was the result of negligence upon the part of the millwright who put up the counter shafting, in failing to bolt the timbers to the "I" beams which supported them. The allegations of contributory negligence on the part of plaintiff were determined by the jury in his favor, and as no motion for a new trial was made by either party, we now have before us only the question of defendant's liability, which is raised by the question of law reserved, to wit: "Whether there is any evidence which entitles plaintiff to recover." Plaintiff's contention is that defendant failed to provide him with a reasonably safe place in which to work, and because of such failure is liable for his injury, while defendant's contention is that plaintiff's injury was the result of negligence upon the part of a fellow workman and consequently it is not responsible for the accident. If the millwright was a fellow workman judgment must be entered for defendant. A determination of this question, it seems to us, depends upon whether or not the counter shafting and the grinder operated by it are fixed machinery, a permanent part of the plant of defendant company. If of a permanent nature, defendant was bound to see that they were reasonably safe, and would be responsible to those who use or work about them for any injury resulting from negligence in their construction. If the counter shafting and grinder attached to it were portable appliances, what are generally known as tools, defendant would not be responsible. The testimony shows the counter shafting and grinder operated by it were put in place about two years ago and have been used constantly since that time as then constructed, except that the grinder's location on the floor of the factory has been changed a few inches. It also appears from the testimony that the part of the factory in which the grinder was located had previously been used as a wareroom, that the materials stored therein had been removed and a number of grinders, including the one at which the accident to plaintiff happened, installed, and that the machines were "a part of the development of the works" and were put in "for the purpose of increasing our capacity."

While there appears at first glance to be some conflict in our Supreme Court decisions in regard to the employer's liability for injuries received by an employee engaged in the course of his employment, it is clear: (a) that the employer must provide reasonably safe machinery, and (b) that the employee who constructs or puts up fixed appliances is not a coemployee of those who operate them. In support of these conclusions a reference to the...