Penn Foundry & Mfg. Co v. Probst

• Decision Date: 21 November 1912
• Citation: 76 S.E. 323,114 Va. 264
• Court: Virginia Supreme Court
• Parties: PENN FOUNDRY & MFG. CO. v. PROBST.

76 S.E. 323

114 Va. 264

PENN FOUNDRY & MFG. CO.

v.PROBST.

Supreme Court of Appeals of Virginia.

Nov. 21, 1912.

1. Master and Servant (§ 256^*)—-Injuries to Servant — Defective Appliances and Machinery—Description of Defect—Declarations.

Plaintiff, on being directed to operate a planing machine, was injured by his hand coming in contact with the knives, and alleged that defendant negligently failed to use due care to furnish plaintiff with machinery which was rea sonably safe in that defendant negligently required plaintiff to use a planing machine which had a dull, dangerous, and improper set of knives and a table not properly arranged and adjusted, and that plaintiff was ordered to use the machine, and while doing so, and without fault on his part, but because of the improper and dangerous condition of the machine, his hand was thrown against the knives and injured. Held, that the declaration sufficiently alleged the nature of the defects complained of, the respect in which the machinery was defective, and the causal connection between the defective appliance and the injury.

[Ed. Note.—For other cases, see Master and Servant, Cent Dig. §§ 809-812, 815; Dec. Dig. § 256.*]

2. Master and Servant (§§ 260, 261*)—injuries to Servant—Assumed Risk—Contributory Negligence—Pleading.

Assumed risk and contributory negligence are matters of defense which the servant is not called on to negative in an action for injuries, either by pleading or evidence.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 844-848, 849-854; Dec. Dig. §§ 260, 261.*]

3. Master and Servant (§ 260*)—Injuries to Servant — Assumed Risk — Declarations.

Where a declaration in an action for injuries to a servant did not aver that plaintiff knew of the dangerous condition of the machinery by which he was injured, and it was specifically averred that he was without fault in using it, the declaration was not demurrable as showing that he assumed the risk.

[Ed. Note.—For other cases, see Master and Servant Cent Dig. §§ 844-848; Dec. Dig. § 260.*]

4. Master and Servant (§ 103*)—Injuries to Servant—Safe Appliances—Duty to Furnish.

it is the positive unassignable duty of the master in the first instance to exercise ordinary care to furnish the servant with reasonably safe instrumentalities with which to do his work.

[Ed. Note.—For other cases, gee Master and Servant, Cent Dig. § 175; Dec. Dig. § 103.*]

5. Master and Servant (§ 258*)—Injuries to Servant—Defective Machinery.

Where a declaration for injuries to a servant by defective machinery alleged that it was defendant's duty to use ordinary care to furnish plaintiff with reasonably safe machinery, and that defendant negligently failed to perform such duty, but directed plaintiff to do certain work at a planing machine which was negligently equipped with a dangerous, insecure, and improper set of knives, by reason of which plaintiff's hand was thrown against the knives and injured, the declaration sufficiently alleged defendant's knowledge of the defective character of the machine, since negligent ignorance is equivalent to knowledge.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]

Error to Circuit Court, Augusta County.

Action by Charles Probst against the Penn Foundry & Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

D. Lawrence Groner, of Norfolk, for plaintiff in error.

Timberlake & Nelson and Curry & Curry, all of Staunton, for defendant in error.

WHITTLE, J. This writ of error brings under review a judgment in behalf of the defendant in error, Probst, against the plaintiff in error, the Penn Foundry & Manufacturing Company, in an action to recover damages for personal injuries.

There was a demurrer to the declaration, which the court overruled and that ruling constitutes the principal assignment of error relied on to reverse the judgment

The declaration contains but one count, and, after stating that the defendant was operating a manufacturing plant for the manufacture of saws and other tools, implements, and machinery, and the employment of the plaintiff by the defendant to work in the plant, avers in substance as follows: That it was the duty of the defendant to use due and proper care to furnish the plaintiff with reasonably sound and suitable machinery, tools, and appliances with which to perform his work, and also to exercise ordinary care to maintain and keep the machinery, tools, and appliances with which he was required to work in reasonably safe condition; that, not regarding its duty as aforesaid, the defendant, on a day named, negligently and carelessly failed and refused to use due and proper care to furnish the plaintiff with machinery, tools, and appliances with which he could, with reasonable safety, perform his duties as servant of the defendant, in this: That the defendant did negligently and carelessly furnish and require the plaintiff to use a planing machine which had a dull, dangerous, insecure, and improper set of knives, and the table or top thereof, in which the knives revolved, was not properly arranged and adjusted; that the defendant ordered the plaintiff to put the planing machine in motion and plane certain pieces of wood, and while the plaintiff was performing the work assigned to him, and without fault on his part, but because of the improper and dangerous condition of the machine, his left hand was jerked into, or caught and thrown against, the knives of the planing machine, and the first, second, and third fingers of his hand were cut off, and the index finger was badly injured.

The grounds of demurrer are:

(1) That "the declaration is so vague and indefinite as to make it impossible * * * to ascertain * * * the nature of the defect complained of or how the same caused or contributed to the accident"

(2) "The declaration alleges that the defendant furnished plaintiff a dull, dangerous, insecure, and improper set of knives, without alleging in what way they were dangerous or how that fact caused the injury to occur."

(3) "The declaration says the table or top in which the set of knives revolved was 'not properly arranged and adjusted, ' without saying in what respect they were improperly adjusted and arranged. * * *"

(4) "The declaration shows that plaintiff assumed all risk from such defects as are alleged, and that the same were open and obvious, and it fails to show that the defendant knew of same."

The first three grounds of demurrer question the sufficiency of the averments to apprise the defendants of the nature of the defects complained of, or in what respect the machinery was dangerous, or the causal connection between the defective appliances and the injury.

The foregoing defects are described with sufficient certainty and particularity to inform the defendant of the alleged cause of action which it is called upon to answer, and that, under our practice, is...