Reese v. Clark
| Decision Date | 07 January 1901 |
| Docket Number | 167 |
| Citation | 47 A. 994,198 Pa. 312 |
| Parties | Reese v. Clark |
| Court | Pennsylvania Supreme Court |
Argued October 31, 1900
Appeal, No. 167, Oct. T., 1900, by plaintiff, from order of C.P. No. 1, Allegheny Co., Sept. T., 1891, No. 533, refusing to take off nonsuit in case of John Reese v. Frank L. Clark. Reversed.
Trespass for personal injuries. Before COLLIER, J.
The facts are stated in the opinion of the Supreme Court.
At the trial Eugene McCarthy, a millwright and a witness for plaintiff, being on the stand and having testified that he saw the condition of the furnace, counsel for plaintiff made the following offer: We offer to prove by the witness on the stand that if plaintiff, in moving the bricks, was working on the foundation that had supported the front plate of this furnace, at least four or five feet away from the foundation on which the plate that fell and hurt him was resting, the removal of these bricks from the front foundation would have no effect whatever in causing the falling of the plate.
Objected to as generally incompetent and irrelevant.
The Court: You may show how he was working and how the location was, and exactly what he did; and then the jury will judge from that whether his act caused it or not.
Objection is sustained, and bill of exception sealed for plaintiff. [2]
Eugene McCarthy, a witness for plaintiff being on the stand and having testified that he was a millwright, and builder of mills, and fully acquainted with the construction of furnaces, and had seen the condition of the furnace in controversy, and the position of the plate shortly before it fell, counsel for plaintiff made this offer:
I want to know whether he, as an expert, knows what was the cause of this falling of the plate, and how it came to fall, what was the cause of the falling of the plate.
Objected to as incompetent and irrelevant.
Objection sustained and bill sealed for plaintiff. [3]
The same witness was asked by counsel for plaintiff the following question:
"If that plate was standing in the position in which you saw it shortly before the accident, and a person had been stationed to watch the plate, could he have given a person in front of it sufficient notice that the plate was about to fall -- sufficient warning in advance of the fall of the plate to have allowed him a chance to escape?"
Objected to as calling for a mere opinion; and not for any facts within the knowledge of the witness; and also because the witness testified that he did not see the plate on the day of the accident, until after the accident.
Objection sustained and bill sealed for plaintiff. [4]
The court entered a compulsory nonsuit which it subsequently refused to take off.
Errors assigned were (1) refusal to take off nonsuit; (2, 3, 4) rulings on evidence, quoting the bill of exceptions; (5) striking out an opinion of the witness McCarthy.
F. C McGirr and L. P. Stone, with them John Marron, for appellant. -- The defendant subjected the plaintiff to danger, which in good faith he ought to have provided against, and ought to be held liable for the injury plaintiff sustained: Patterson v. Pittsburg & Connellsville R.R. Co., 76 Pa. 394; Kehler v. Schwenk, 151 Pa. 505; Arnold v. Penna R. Co., 115 Pa. 135; Shearman & Redfield on Negligence (5th ed.), sec. 91; Lee v. Woolsey, 109 Pa. 124; Kohler v. Penna. R. Co., 135 Pa. 346.
The risk, if any, the plaintiff assumed, did not threaten immediate danger, and was in pursuance of the defendant's promise to protect him, and no negligence is properly attributable to him: Patterson v. Pittsburg & Connellsville R.R. Co., 76 Pa. 394; Brownfield v. Hughes, 128 Pa. 194; Penna. R. Co. v. Peters, 116 Pa. 206; Lee v. Woolsey, 109 Pa. 124; Woodward v. Shumpp, 120 Pa. 458.
William K. Shiras, with him George Shiras, 3d, and C. C. Dickey, for appellee. -- In this case the plaintiff knew the condition of the plate, and if there was danger in working in front of it, he assumed the risk of it: Diehl v. Lehigh Iron Co., 140 Pa. 487; Marean v. New York, Susquehanna & Western R.R. Co., 167 Pa. 223; Devlin v. Phoenix Iron Co., 182 Pa. 114; Moore v. Penna. R. Co., 167 Pa. 497.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN, MESTREZAT and POTTER, JJ.
We are of opinion that the learned judge of the court below was in error in withdrawing this case from the jury, and in not submitting to them to determine the negligence of the defendant as well as the concurring negligence of the plaintiff.
The testimony produced at the trial and which we must assume to be true, tends to establish the following facts: John Reese, the plaintiff, was a puddler and for many years worked at his occupation in the rolling mills at Cleveland, Ohio. In October, 1886, he and other workmen were engaged in wrecking and tearing down furnaces at one of these mills. He was employed by, and was working for and under the immediate orders of, the defendant. The furnaces were erected in pairs, with the rear plates within eight inches or a foot of each other and resting on the same foundation, which is wider than the front foundation. The front, rear and sides were of cast iron plates bolted together, and were supported by a brick foundation about one foot and a half wide. The distance between the front and rear foundation walls was about five or six feet.
The interior of the furnace was lined with brick, and the top was oval, also of brick. The front and rear plates were held together by connecting rods at the top and bottom of the furnace. At the time of the accident, the plaintiff had been engaged three weeks assisting in tearing down the furnaces, in removing the connecting rods, cutting the bolts which held the plates together, and in doing such other work as was necessary to completely dismantle the furnaces. He and another employee were at work removing brick from the front foundation of furnace No. 20, on October 30, 1886, when he was seriously injured by the rear plate of that furnace falling upon him. This plate consisted of four plates held together by bolts, weighed at least 1,800 pounds and stood six feet above the foundation. When, the day before the accident, it was disconnected from the front plate by cutting the rods which held them together, it was laid or inclined against the back of the furnace immediately in its rear. This was the only support it then had. The back plates of the two furnaces when perpendicular were three or four inches apart.
Shortly before the plate fell the plaintiff was absent about half an hour at a blacksmith's shop having a chisel sharpened. When he returned he found the plate shifted some from its former position. The defendant then told him to go and pick the brick out of the furnace, to hurry up about it, that he did not want the team to stand there. To this order the plaintiff said, "I will, but the best way is to take them plates down first." The defendant then said, "Go and do what I tell you to do, the plates is all right, I'm looking after them." He received similar instructions from the defendant before he went to the blacksmith shop. At the last interview between the parties in regard to the plate, which was three or four minutes before the plate fell, the defendant was also told by another person that he ought to have the plates down, to which he replied that the plate was all right. His attention was also called to the plate by Eugene McCaffrey a short time before it fell, with the suggestion that it was dangerous to the men working on the furnace, and that if he, McCaffrey, had some lashing he could lash the plate so it would not fall. The defendant very emphatically told McCaffrey to attend to his own business, and that he would attend to the plate. Two years after the accident the defendant also said to McCaffrey that if he had taken his advice, the accident would not have happened.
At the time the plaintiff was injured he was working with his back to the plate removing brick from the front foundation. This work had no effect, however, on the rear foundation on which the plate was resting. The plate fell on the plaintiff's back and he fell forward on his face, receiving very severe injuries. It was resting on an old foundation, the top of which gave way and caused it to fall.
The learned judge of the court below assigned no reason, so far as the record discloses, for granting the nonsuit, or for refusing to take it off. The appellant's argument suggests that it was because the court thought the evidence in this case was substantially the same as that in Reese v. Clark, 146 Pa. 465. We have therefore stated the facts more fully than we otherwise would have done, so that the difference between the cases may be readily observed. We do not intend to question the doctrine announced by the court when the case was here before; we are merely applying the well settled principles of law to the facts as disclosed in the present case.
It must be apparent from the most superficial view of the testimony in this case that the defendant's action was the proximate cause of the accident to the plaintiff. The work of wrecking the furnaces was done under the immediate orders and supervision of the defendant. He was, therefore, familiar with the work as it progressed, and knew the...
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