Searles v. Boorse

• Decision Date: 21 April 1919
• Docket Number: 176
• Citation: 107 A. 838,264 Pa. 454
• Parties: Searles, Appellant, v. Boorse
• Court: Pennsylvania Supreme Court

107 A. 838

264 Pa. 454

Searles, Appellant, v. Boorse

No. 176

Supreme Court of Pennsylvania

April 21, 1919

Argued March 26, 1919

Appeal, No. 176, Jan. T., 1919, by plaintiff, from judgment of C.P. No. 5, Philadelphia Co., Sept. T., 1914, No. 1888 for defendant n.o.v., in case of Samuel Searles v. David Boorse. Affirmed.

Trespass to recover damages for personal injuries. Before STAAKE, J.

At the trial the jury returned a verdict for plaintiff for $2,000. Subsequently the court entered judgment for defendant n.o.v Plaintiff appealed.

Error assigned was in entering judgment for defendant n.o.v.

The judgment of the court below is affirmed.

M. D. Hayes, with him Harry P. Felger and Francis M. McAdams, for appellant. -- As showing that the circumstantial evidence in the case at bar was sufficient to take the case to the jury, we cite the following authorities: Folk v. Schaffer, 186 Pa. 253; Hughes v. Fayette Mfg. Co., 214 Pa. 282; Lamb v. P. & R.R. Co., 217 Pa. 564; Fullick v. South Penn Oil Co., 260 Pa. 4; Madden v. Lehigh Val. R.R. Co., 236 Pa. 104; Mayers v. Atlantic Refining Co., 254 Pa. 544; Johnson v. Phila. House Wrecking Co., 55 Pa.Super. 623.

The law of this State seems clear to the effect that the employer is bound to adopt and use the method and system of work in ordinary use at the time, and that if he adopts a system which is not the usual one but is more dangerous than the usual one, and if the plaintiff while following such unusual and dangerous system is injured, that the jury is justified in finding a verdict against the defendant: Liptak v. Kurrie, 244 Pa. 117; McGeehan v. Hughes, 223 Pa. 524; Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625; Stewart v. Cent. R.R. Co. of N.J., 235 Pa. 311; Bardsley v. Gill, 218 Pa. 56.

Samuel L. Borton, with him E. Cooper Shapley, for appellee. -- The burden was on plaintiff to show not only that the floor was defective and therefore collapsed, but that defendant knew it was defective, or ought to have known it, which means that if defendant is to be held liable, the plaintiff must show that defendant was ignorant of it through want of due care: Bradbury v. Kingston Coal Co., 157 Pa. 244-6; Purdy v. Westinghouse Elec. & Mfg. Co., 197 Pa. 257; Ely v. Pittsburgh, etc., Ry. Co., 158 Pa. 233; Wojciechowski v. Spreckles Sugar, etc., Co., 177 Pa. 57; Moran v. General F.E. Co., 259 Pa. 168.

Before MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiff sued defendant to recover damages for personal injuries; the trial judge declined defendant's point for binding instructions, reserved another point to substantially the same effect, and submitted the case to the jury, which found a verdict for plaintiff; the court below entered judgment for defendant non obstante veredicto, and plaintiff appeals. We must, therefore, assume as true all the facts and inferences from facts which the jury might have found in favor of plaintiff, and reject all those unfavorable to him which the jury might have rejected; but unattacked court records duly proved and admitted in evidence must be given due weight, though appearing in defendant's testimony. From the standpoint stated, the facts are as follows:

Plaintiff and one Jacob Cottman, who were employees of defendant, were working for him in tearing out a portion of a building at the S.W. Cor. of 30th and Master streets in the City of Philadelphia, which had been partially destroyed by fire; and while so engaged plaintiff received the injury of which he now complains. When he first brought suit for this injury, he averred in his sworn statement of claim, he was set to work "in the digging of a certain excavation in and about the said building . . . and while employed in digging the said excavation . . . close to a certain large wall . . . not shored, braced or protected, . . . said large wall collapsed and fell upon the plaintiff, throwing him to the ground and seriously injuring him about the head, neck, body, legs and arms, and injuring him internally." The record before us fails to disclose what was done with that suit, which was in another court than the one in which this case was tried. In the present case he sues for the same injury and alleges in his sworn statement of claim, he was sent to work on the fifth floor of the building, and while there "the floor upon which plaintiff was standing suddenly collapsed and gave way beneath him, and he was thrown from his position and was struck by a piece of timber which had fallen from overhead, in consequence of which he, the said plaintiff, was seriously injured about the head, neck, legs, body and arms, and was injured internally." This record is barren of any explanation of these contradictory statements.

The case was tried twice, and on the last trial, now being reviewed, plaintiff testified he and Cottman were engaged in getting a piece of burnt timber out of a shaft into which it had fallen, plaintiff going to the fifth story and pulling a rope attached to the timber, and Cottman pushing from below. Before going there he said to Cottman "Jake, I don't think it's very safe because you know how that floor is up there; I think it's pretty dangerous." And the latter said in reply "Yes, everything up there is perfectly safe and sound." No reason was given by plaintiff why he did not think the floor was safe, but his remark implies he was well acquainted with the situation. He says he found the "fifth floor was nothing but lumber that had fallen down from the house when the fire was -- rubbish, and half brickbats, and one stuff and another like that"; and while he was standing cater-cornered across the shaft and pulling and Cottman was pushing, and the timber was part way up, the floor at the edge of the shaft gave way, his foot slipped into the shaft, he threw himself backward, his back struck another piece of timber which was lying on the floor, and he was injured. This is his whole account of the accident. He admits nothing fell from above and struck him, and that at the first trial he testified he was injured by his back striking against the side of the shaft.

At this trial he called two witnesses, who testified the best way to do this kind of work would be to use a block and tackle, but as their answers related rather to convenience in doing the work, and as one of them said a block and tackle would not be needed unless the timber was wedged in, which...