Snyder v. Longmead Iron Co.

• Decision Date: 02 March 1914
• Docket Number: 195
• Citation: 244 Pa. 325,90 A. 630
• Parties: Snyder, Appellant, v. Longmead Iron Company
• Court: Pennsylvania Supreme Court

90 A. 630

244 Pa. 325

Snyder, Appellant, v. Longmead Iron Company

No. 195

Supreme Court of Pennsylvania

March 2, 1914

Argued February 2, 1914

Appeal, No. 195, Jan. Term, 1914, by plaintiff, from judgment of C.P. Montgomery Co., Oct. Term, 1911, No. 84, refusing to take off nonsuit in case of Joseph Snyder v. Longmead Iron Co. Affirmed.

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

The opinion of the Supreme Court states the facts.

The lower court entered a nonsuit which on motion it subsequently refused to take off. Plaintiff appealed.

Errors assigned were, inter alia, the refusal of the court to take off the nonsuit.

The assignment of error is overruled and the judgment is affirmed.

Theodore Lane Bean, for appellant.

Franklin L. Wright, with him Charles T. Larzelere, and Nicholas H Larzelere, for appellee.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The court below entered a nonsuit, which it subsequently refused to take off, and the plaintiff has appealed. The appellant states five questions involved; but the consideration of only two of them is necessary to the decision of this case, i. e (1) "Was the negligence of the defendant legally established?" (2) "Was the plaintiff guilty of contributory negligence as a matter of law in performing the action resulting in the injury in an obviously dangerous manner when there was known to him a safe method of performance?"

Joseph Snyder, the plaintiff, was thirty-four years old at the time of the accident, and had had fifteen years experience in manufacturing establishments using machinery of the same general character as that in the defendant's plant. He had been employed by the defendant for about five months, and was the foreman of the department in which he was injured, having occupied that position for at least three weeks. The plaintiff admitted that he had the right to "order the disposition of anything in that room," and in answer to the question, "The whole thing was under your control, was it not?" he answered "Yes." He further testified that it was his duty "to see if anything was wrong," and if so, that he was "supposed to go to Mr. Thomas and get it fixed up"; the latter was his superior in general control of the works, and the last mentioned testimony related to the plaintiff's duty concerning the machinery in his room. The plaintiff stated that Mr. Thomas ordered him to keep the machinery in his department oiled, and he assumed that it was intended thereby that he should do the oiling himself, although he and his witnesses admitted that a special man was employed by the defendant, whose regular duty it was to keep the machinery oiled daily; this man subsequently went upon the stand at the plaintiff's call and testified that he had entire charge of all the oiling, that he had oiled the machine in question the night before and expected to do so on the morning of the accident. The plaintiff was injured in his first endeavor to oil; in attempting to explain how the accident happened, he said, "I walked behind the machine to oil up, and I got a pretty good position, I thought, and I leaned over like this (indicating) to oil the machine, and something grabbed this hand (indicating the left hand). I did not realize what it was, it just grabbed and started like chewing." This is as clear an account of the accident as can be found in the evidence. The witness testified he did not know how he came to be injured, but that his left hand, which was not in use at the time, in some way unknown to him, was caught in the cogs; he stated, "I do not know whether it slipped in or not." When he was asked whether the cog-wheels were revolving rapidly or slowly, he answered, "Oh, rapidly." The plaintiff and practically all of his witnesses said that the narrow space behind the machine, in which he stood while oiling, was particularly dark on that morning, and one of his witnesses testified that the operators did not usually go back there "without the machine was stopped." The plaintiff said the cogs in question were not guarded; but upon this important point he also testified that there had been guards provided which he had seen when he first went there to work, and that afterwards he "saw them off." In answer to the question, "you say the guard was off this morning that you oiled it?" he replied, "There was no guard there when I went to oil it." He said that on the day of the accident he "did not believe that he could hardly see the guard," and in this connection he frankly admitted, "I did not pay much attention." His witness, the regular oiler, testified that there had been a protection or guard over these cog-wheels, but that it was off at the time of the accident; he further said, that it was "the company's intention to keep it there," but it was hard to keep a guard on, that the boys, including those under plaintiff...