Prescott v. Ball Engine Co.

• Citation: 176 Pa. 459,35 A. 224
• Decision Date: 15 July 1896
• Docket Number: 6
• Parties: Sampson Prescott v. Ball Engine Company, Appellant
• Court: United States State Supreme Court of Pennsylvania

35 A. 224

Sampson Prescott v. Ball Engine Company, Appellant

176 Pa. 459

No. 6

Supreme Court of Pennsylvania

July 15, 1896

Argued April 28, 1896

Appeal, No. 6, Jan. T., 1896, by defendant, from judgment of C.P. Erie Co., Sept. T., 1893, No. 150, on verdict for plaintiff. Reversed.

Trespass to recover damages for personal injuries. Before MILLER P.J., of the 35th judicial district, specially presiding.

At the trial it appeared that on December 23, 1892, plaintiff while engaged in defendant's works in lifting a heavy piece of machinery was injured by the breaking of a rope used in the work. It appeared that the rigger, Joseph Shannon, ordered the ropes or slings, and kept a supply of them at several places in the works. It was the duty of the workmen to go to these places and select the rope which was suitable for the work which they had in hand. Hill, a fellow workman of the plaintiff, selected the rope which was in use at the time of the accident.

When A H. Stahl, an employee of defendant, was on the stand, on the part of the defendant, he was asked these questions:

Q. Where did you have to go to get these slings when you wanted to use one? A. There was three places; one at the elevator and one at the testing room and one in the old shop. Q. Now state to the jury whether any instructions were given to you whether -- whether you were not allowed to exercise your own discretion? A. I was allowed to get whatever I wanted. Q. Was it the same way with every one in the shop? A. Yes, sir.

Objected to.

Q. Do you know how it was with the other workmen as to their right to get slings as you did? A. Yes, sir; they were. The foreman told me that.

Objected to.

The Court: He couldn't testify as to what the foreman told him except so far as it affected himself; the foreman might tell him something that he didn't tell the other men in the shop. There were over a hundred workmen here. I think it would be incompetent.

Objection sustained and bill sealed for defendant. [5]

Defendant's points, among others, were as follows:

1. If the jury find from the evidence that the sling was negligently or incorrectly put on the shaft by Hill and Sheer, or either of them, the plaintiff cannot recover and your verdict should be for the defendant. Answer: Affirmed if you find that the sling was reasonably sound. [13]

2. If the jury find from the evidence that one of the strands of the sling was cut by the sharp head of the set-screw on the clamp and that this was caused by the sling being incorrectly and improperly put on to the shaft by Hill and Sheer, the fellow workmen of Prescott, then and in that case the plaintiff is not entitled to recover and your verdict should be in favor of the defendant. Answer: Affirmed, if you should find that the sling was reasonably sound. [14]

3. If the jury find from the evidence that Joseph Shannon and Hill were fellow workmen of the plaintiff, and that the accident was caused by the negligence of either of them, then and in that case the plaintiff is not entitled to recover, and your verdict should be in favor of the defendant. Answer: Affirmed, if you find from the evidence that Joseph Shannon, as well as Hill, was a fellow servant (workman). [15]

5. If the jury believe the evidence of Harrington and other witnesses who testified on the part of the plaintiff, who testified as to the appearance of the sling, by the breaking of which the accident complained of was caused, and Hill and Sheer, fellow workmen of the plaintiff were negligent in taking a worn-out sling with which to do their work, the plaintiff is not entitled to recover damages in this case and your verdict should be in favor of the defendant. Answer: Refused, provided you find that the sling used was one furnished by the defendant, and that the plaintiff had no knowledge of its condition. [16]

6. If the jury find from the evidence that the accident was caused through the negligence and carelessness of Hill and Sheer, or either of them, in using a sling which was insufficient for the work to be done, or in so putting it on the shaft that it was cut, then and in that case the plaintiff is not entitled to recover and your verdict should be in favor of the defendant. Answer: Affirmed, provided you find from the evidence that the sling used was insufficient for the reason that it was too light a sling to safely lift the weight or shaft in question: provided also that you find that it was reasonably sound, but that it was cut because it was improperly or unskillfully attached to the shaft. [17]

Verdict for plaintiff for $9,990, upon which judgment was entered for $6,000. Defendant appealed.

Errors assigned among others were, (5) rulings on evidence, quoting the bill of exceptions; (13-17) above instructions, quoting them.

The errors pointed out require us to reverse this judgment. A venire facias de novo is awarded.

J. M. Sherwin and S. A. Davenport, for appellant. -- Shannon was the fellow servant of the plaintiff, Sheer and Hill: Loughlin v. State of New York, 105 N.Y. 159; N.Y., L.E. & W.R.R. v. Bell, 112 Pa. 400; McGee v. Boston Cord Co., 139 Mass. 445; Johnson v. Boston Tow Boat Co., 135 Mass. 209; Webber v. Piper, 109 N.Y. 496.

If the sling was not sound, but had the appearance externally of being a good rope, and if its unsound condition was not known to or could not have been discovered by defendant, by the exercise of ordinary prudence and care, defendant was not guilty of negligence: Phila. & Reading R.R. v. Hughes, 119 Pa. 302; Warner v. Erie Ry., 39 N.Y. 475.

T. A. Lamb, with him E. P. Gould and E. A. Walling, for appellee. -- It was the duty of the defendant to furnish and maintain machinery, tools and appliances reasonably safe for use by its employees: Mullan v. Mail Steamship Co., 78 Pa. 25; Hough v. Texas & P.R.R., 100 U.S. 213.

Shannon was a vice principal and his negligence was the negligence of the defendant company: McKinney on Fellow Servants, sec. 41; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42.

It was the defendant's duty to furnish safe appliances, but in the case of a rope or other appliance known to the employer to be perishable, it was his duty to renew the same at proper intervals: Baker v. Allegheny Valley R.R., 95 Pa. 211.

In Grand Trunk Railway v. Cumming, 106 U.S. 700, it was expressly decided that the company, if its negligence had a share in causing the injuries of the plaintiff, was liable notwithstanding the contributory negligence of his fellow servant; McKinney on Fellow Servants, secs. 16, 31, 32, 33...