Rummell v. Dillworth, Porter & Co., Ltd.

• Decision Date: 04 January 1886
• Citation: 2 A. 355,111 Pa. 343
• Parties: Rummell, Administrator, v. Dilworth, Porter & Co., Limited. Rummell v. Same
• Court: Pennsylvania Supreme Court

2 A. 355

111 Pa. 343

Rummell, Administrator, v. Dilworth, Porter & Co., Limited.

Rummell v. Same

No.

Supreme Court of Pennsylvania

January 4, 1886

Argued November 11, 1885

Error to the Court of Common Pleas No. 1, of Allegheny County: Of October and November Term, 1885, Nos. 208 and 209.

These were two actions brought in the Court below against the same defendants, Dilworth, Porter & Co., Limited, one by George Rummell, Jr., a minor, to recover for injuries suffered through the alleged negligence of the defendants, the other by George Rummell, Sr., father of the said George Rummell Jr., to recover for the loss of his son's services, and for expenses, medicine, etc., rendered necessary by the same cause.

The negligence set up in the declaration in each case was the same, and was charged as follows: The defendants, on the 10th day of September, 1881, had in their employ, George Rummell Jr., as a laborer in their spike mill, in the 30th ward, city of Pittsburgh, near certain rollers, machinery and appliances in said mill. That it was defendant's duty to furnish keep and maintain said machinery that the same, while in motion, should be in safe and proper condition, with proper guards and lights, so that the said George might safely, and without peril to life and limb, labor and work in said mill etc., that the defendants did not exercise due, ordinary and proper care in guarding against danger to said George and others, who worked at and near certain rollers, cogwheels, and machinery therein on said day, but wholly failed therein, especially to place and maintain at and near said cogwheels a guard to protect the plaintiff from hurt and injury; that, by reason of such failure and neglect on part of defendants, on said day and year, the said George, a minor, while he was employed in defendants mill, near said cogwheels then in rapid motion, was injured by having his right leg caught in said cogwheels, and broken, crushed and bruised, causing him great bodily pain, and wholly disabling him from labor in defendants mill, or elsewhere, for life, so that he was unfit to labor or support himself by reason thereof.

The defendants pleaded in each case, not guilty.

The two cases were tried together before the same jury, when the plaintiffs proved the following case: George Rummell, Jr., was a son of George Rummell, Sr., and on the 10th day of September, 1882, was about seventeen years old. Young Rummell was employed by the defendants as "dragger down" in their spike mill; in that capacity it was his duty to drag heated pieces of billets of old iron rails out of a furnace and place them a few feet distant in a train of ten pairs rollers by which they were reduced to spikes. The rollers were so constructed that the head rollers were wider apart than the others as the billets passed along the train; the train was protected along its sides where the cogwheels were exposed when in motion, with guard boards two feet high, extending from the second pair of rollers to the lower end of the train, but the cogwheels of the two head pairs of rollers were left unprotected and the cogs were exposed when the "draggers down" were required to work. When a hot billet was started it would sometimes stick at the first rollers, and an appliance called a gate had to be opened to let it pass on; this had to be done promptly, as otherwise the billet would cool and the rollers might be broken by it, and there was always another billet ready to start. The gate was between the first and second rollers, where there was no guard board, and the person opening the gate would step to one side of the rollers and open the gate by throwing off a ring from the top of the two iron rods extending perpendicularly above the rollers. This done the billet would pass into the second pair of rollers. The gate had then to be at once closed. To do this it was necessary to stand beside the cogs in rapid motion and reach over, catch the gate rods with his hands, draw them together and replace the ring. This duty was dangerous on account of the revolving cogs being exposed and the liability of the "draggers'" clothing to be caught therein; had the guard boards extended three feet further, so as to cover the cogs on the first two pairs of rollers, as they did the other, the danger of being caught would have been avoided. It appeared that the duty of opening and closing the gates was more especially that of the roller boss, but that the "draggers" were accustomed to perform it and regarded it as part of their duty. On the day before mentioned, about 4 o'clock in the morning, while the mill was dark and not provided with sufficient light to show clearly the movements of the machinery, Rummell, who was on duty, while opening the gate had his trousers caught by the cogs, was drawn in to the machinery and had his leg terribly crushed by the revolving cogs. It also appeared by the plaintiff's evidence that Rummell's immediate employment was by one Richards, the roller boss, who paid him his wages, and that he had been employed in the defendants mills about five days before the day of the accident.

The plaintiffs having rested, Collier J., on motion of the defendants entered a compulsory nonsuit in each case, which nonsuits the Court in banc refused to take off.

The plaintiffs took these writs assigning for error the refusal of the court to take the judgments of nonsuit in each case. After the trial in the Court below George Rummell, Jr., died and the suit in his case was prosecuted by George Rummell, Sr., administrator of his son's estate.

Judgment reversed, and a venire facias de novo awarded.

SYLLABUS

The relation of Master and Servant exists where the latter is employed, not by the Master directly, but by an employee in charge of a part of the Master's business with authority to engage assistants therein; and the fact that the subordinate employee receives compensation proportioned to the work done does not alter the case.

A Master must provide and maintain reasonably suitable instruments and means to carry on his business so that his servant may perform his duties with relative safety and without exposure to dangers not reasonably incident to his employment.

The scope of duty within which a servant is entitled to protection is to be defined by what he was employed to perform, and by what, with the knowledge and approval of his employer he actually did perform, rather than by the verbal designation of his position.

A servant who has had a full and fair opportunity of becoming acquainted with the risk of his situation, and who has made no complaint to his Master as to a danger to which he is exposed, but continues to work voluntarily, notwithstanding the same, must be held to have assumed for himself the risk of the injury to the danger of which he is exposed.

A boy was engaged to work on a train of rollers in a spike mill, after having been at work a few days he was, while fulfilling his duty, caught by the cogs of the rollers, drawn in and hurt; a board protection extended along the rollers, but stopped short of the point at which the boy had to stand to perform part of his work about the rollers; had the board extended three feet further than it did he could have done his work in safety:

Held, there was sufficient evidence of negligence on the part of the employer and mill owner to require the submission of the case to the jury.

A. M. Watson, for plaintiffs in error. -- An employer is bound to provide ordinarily safe appliances and machinery and to keep them in proper condition for the protection of his employees, failing in these respects an employer is liable to his employee for injuries suffered through such failure of duty: Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. St., 280. The case should have been submitted to the jury: Baker v. A. V. R. R., 95 Pa. St., 211; R. R. v. Heil, 5 W. N. C., 91; R. R. v. Foxley, Pitts., L. J., Oct. 14th, 1885; Maynes v. Atwater, 88 Pa. St., 497; Smyth v. Craig, 3 W. & S., 14; Bevan v. Ins. Co., 9 Id., 187.

Wm. R. Blair, (with him John Dalzell) contra. -- There was no evidence of negligence on the part of the defendants, there is no evidence that the machinery was not sound, complete and of first class material. Will any Court say that because in a large mill covering a large block of ground a single board happens to be three feet shorter than the space it is intended to cover, a jury is at liberty to find negligence, especially when there is no evidence that the defendant ever had any thing to do with, or any knowledge of the board, its placing, displacement or condition there? There is no evidence from which any obligation to have a board there at all can be inferred.

A Master is not an insurer of his servant's safety. The obligation is simply to use ordinary care in the selection and care of the machinery at which the servant works: Priestley v. Fowler, 3 M. & W. 1; Wright v. R. R., 25 N.Y. 562; Hayden v. Man'fg Co., 29 Conn. 548; Payne v. Reese, 12 W. N.C. 97; Mansfield Co. v. McEnery, 10 Norris, 185; P. & C. R. R. Co. v. Sentmeyer, 11 Id., 276.

Rummell was hurt while acting out of the line of his employment; it was no part of the "dragger downs" duty to close the gate; therefore, being injured while doing something he had voluntarily undertaken he cannot recover: Brown v. Byroads, 47 Ind. 435; P. & C. R. R. v. Sentmeyer, supra; McGlynn v. Brodie, 31 Cal. 376; Wharton Negl., §§ 215, 244; 2 Thompson Negl., p. 1016.

Rummell was hurt by one of the ordinary risks of his employment Hayden v. Man'fg Co., 29 Conn. 548; Man'fg Co. v. Ballon, 71 Ill. 417; Buzzell v. Man'fg Co., 48 Me. 121; Dynen v. Leach, 26 L. J. Exch. N. S., 221; Stone v. Oregon Man'fg Co., 4 Or., 52; Ladd v. R. R. Co., 119 Mass. 412; Fra...