Schwartz v. Caplan
| Decision Date | 08 January 1917 |
| Docket Number | 131 |
| Citation | 256 Pa. 239,100 A. 800 |
| Parties | Schwartz v. Caplan, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 16, 1916
Appeal, No. 131, Oct. T., 1916, by defendant, from judgment of C.P. Allegheny Co., July T., 1914, No. 966, on verdict for plaintiff, in case of Robert Schwartz v. Gutman Caplan. Affirmed.
Trespass to recover damages for personal injuries. Before DAVIS, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $5,225 and judgment thereon. Defendant appealed.
Errors assigned, among others, were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n.o.v. and in refusing to grant a new trial.
The judgment is affirmed.
Stephen Stone, of Stone & Stone, for appellant.
Meredith R. Marshall, with him Rody P. Marshall and Charles H. Sachs for appellee.
Before BROWN, C.J., POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.
Plaintiff's hand was caught and crushed between iron rolls, while he was employed in defendant's bakery. The rolls were set in a table one above the other, the top of the lower roll being practically flush with the table. In the process of bread making the dough was passed back and forth between the rolls by workmen standing at each end of the table. Plaintiff seems to have slipped as he was pushing the dough back into the rolls so that the hand he was using for that purpose was caught. The rolls were operated by the employee at the other end of the table by means of a lever. There was some evidence that it was safer to use a paddle in pushing in the dough and that defendant's foreman had promised to supply plaintiff with one, but this was denied; also some evidence to the effect that the dough should be pushed against the rolls with the closed hand and not with the fingers. However, the gravamen of plaintiff's complaint was that the rolls were unguarded in violation of the Act of May 2, 1905, P.L. 352 (Sec. 11). As a matter of fact there were no guards over the face of the rolls, defendant's contention being that to place guards over them would destroy their efficiency. This was denied by plaintiff, and as to that the evidence was conflicting, and it was properly submitted to the jury, who found for the plaintiff.
The question of contributory negligence was not urged at the trial, and no reference was made thereto in the charge, the court's attention not having been called to that branch of the case by a formal request or otherwise; and only a general exception was taken to the charge.
Whether it was practicable to guard the rolls in question without destroying their efficiency was for the jury under the evidence: Booth et al. v. Stokes, 241 Pa. 349; Shannon v. Carnegie Steel Co., 244 Pa. 346; Smith v. Philadelphia Rubber Works, 248 Pa. 494.
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Price v. New Castle Refractories Co.
...". . . customary use, while a matter to be considered, is not conclusive as against the positive command of a statute." See also Schwartz v. Caplan, 256 Pa. 239. It clear to us from a study of the record that the question here was for the jury to decide and its finding for the plaintiff com......