Sofferstein v. Bertels

• Decision Date: 11 November 1896
• Docket Number: 81
• Citation: 35 A. 1000,178 Pa. 401
• Parties: Benjamin Sopherstein v. William B. Bertels, Appellant
• Court: Pennsylvania Supreme Court

35 A. 1000

178 Pa. 401

Benjamin Sopherstein v. William B. Bertels, Appellant

No. 81

Supreme Court of Pennsylvania

November 11, 1896

Argued April 14, 1896

Appeal, No. 81, July T., 1895, by defendant, from judgment of C.P. Luzerne Co., October T., 1892, No. 216, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before RICE, P.J.

At the trial it appeared that the plaintiff was injured on January 8, 1892, while operating a tin stamping press in the defendant's factory in Wilkes-Barre. His work was to stamp what are called bottles which serve as covers for dinner pails. In the performance of this work his duty was to place the tin bottle in a die, touch a pedal with his foot and thus bring down a plunger which made the proper stamp. He would then take out the bottle and pass it on to an operator of an adjoining press for further treatment. Plaintiff testified that he was injured on Friday by the plunger falling before he had placed his foot upon the pedal. He stated that on the previous Wednesday he had called the superintendent's attention to the defect in the machine that the superintendent fixed it on Thursday and said to him: "Go ahead, hurry up; go ahead, that is all right."

Plaintiff's counsel proposed to show that the plunger fell down on this same machine before plaintiff was employed there -- that the plunger fell without the foot being on the pedal; this evidence for the purpose of showing the defectiveness of the machine. Objected to. Objection overruled, exception noted, and bill sealed for defendant. [8]

Other facts appear by the opinion of the Supreme Court.

The defendant's points and answers thereto were as follows:

2. The claim of the plaintiff is that the defendant was guilty of negligence, and by reason thereof he was injured, without any fault of his own; the burden is therefore upon him to prove not only that he was not guilty of any negligence contributing in any degree to the injury he suffered, but also that the defendant was guilty of negligence which caused the said injury. Answer: We decline to charge in the language of that point. A plaintiff, in order to recover upon the ground of negligence from a defendant, must prove a case of negligence on the part of the defendant, and one clear of negligence on his own part; but if the plaintiff has shown a case of negligence on the part of the defendant, and it does not appear in the presentation of his own case that he has himself been guilty of negligence, then the burden of proving contributory negligence of the plaintiff rests upon the defendant. But if, as we have already said, you should find not only that the defendant was negligent, but also that the plaintiff's negligence contributed in any degree to the injury, he would not be entitled to recover. [1]

4. The plaintiff, by his own testimony showing that he discovered that the machine was out of order and specially dangerous, continued working the same, and having notified the superintendent of its condition, who fixed it, and then declared it all right, he then continued to work it until the following day without further difficulty until the accident which caused the injury; he thereby shows either that he was guilty of contributory negligence on his own part, or that the injury was caused by one of those unforeseen accidents against which human imperfection cannot provide, the risk of which the plaintiff took upon himself in undertaking the employment. Answer: This point is answered in the negative. In connection therewith we say, however, the employer does not guarantee the safety of his employee. He does undertake to exercise due care in the particulars to which we have called your attention. If the injury was caused by one of those unforeseen accidents against which human imperfection cannot provide, the risk was one which the plaintiff took upon himself, but whether it was so or not is a question to be decided by the jury, under the instructions we have given. [2]

5. The uncontradicted evidence of all the machinists, and persons familiar with the manner of operating the machine, being that, in putting the bottle or cover into the die, there was no necessity whatever for the exposure of the fingers or any part of the hand to danger or injury, and the plaintiff testifying that he received the injury when putting the bottle or cover into the die, thus shows that he unnecessarily exposed himself to danger, and that the injury he suffered was in consequence of such unnecessary exposure. Answer: We decline to charge as requested in that point. [3]

6. The uncontradicted evidence being that in no case was there any necessity for the exposure of anything more than the ends of the fingers in the operating the machine, the injury suffered by the plaintiff itself shows that he unnecessarily exposed his hand to danger, without which unnecessary exposure the injury he suffered would not have been inflicted. Answer: We decline to charge as requested in that point. [4]

7. It thus clearly appearing, from the evidence as to the operation of the machine, and the plaintiff's, own testimony in plaintiff's own testimony in connection therewith, and also from the character of the injury suffered, that the plaintiff was guilty of contributory negligence without which he would not have suffered the injury, he cannot recover in this action, and the verdict must be for the defendant. Answer: We decline to charge as requested in that point. We negative all three of those points which we have just read; because, for reasons that we have already suggested, such a ruling would withdraw from your consideration the questions of fact which we think it is your province to decide. The general principle that if he unnecessarily exposed himself to a known danger it was contributory negligence, we have already declared to you, but whether he did so or not is for the jury and not for the court to decide. [5]

8. If the jury find that the testimony of the plaintiff is inconsistent in itself, and inconsistent with known circumstances, then it is unworthy of credence, and he has failed to make out a case, and the verdict should be for the defendant. Answer: We affirm that with this qualification. The fact that a man's testimony may be contradicted in some particulars does not necessarily make him wholly unworthy of belief; the effect which is to be given to the successful contradiction of his testimony in any particular, is to be considered by the jury in determining what weight it is to be entitled to; but the court cannot declare to you as a matter of law, that the fact that a witness has testified to a particular in regard to which he was successfully contradicted, or which was inconsistent with known circumstances, would render him unworthy of belief. If, however, his testimony as a whole -- and we so understand the point -- is inconsistent in itself and inconsistent with known circumstances, then it goes to show that he is unworthy of credence, and the jury may and ought to reject it. [6]

9. Under the pleadings and all the evidence in the case the verdict should be for the defendant. Answer: We decline to charge as requested in that point. [7]

Verdict and judgment for plaintiff for $950. Defendant appealed.

Errors assigned were (1-7) above instructions, quoting them; (8) ruling on evidence, quoting the offer, but not the evidence admitted under the offer; (9) in submitting the case to the jury in a charge that was not adequate to the requirements of the case.

The specifications of error are overruled and the judgment is affirmed.

A. Ricketts, for appellant, cited: Lancaster v. Kissinger, 11 W.N.C. 151; P. & R.R.R. v. Hughes, 119 Pa. 301; Mensch v. Pa. R.R., 150 Pa. 598; Mixter v. Imperial Coal Co., 152 Pa. 395; Kaufhold v. Arnold, 163 Pa. 269; Pittsburg & Connellsville R.R. v. Sentmeyer, 92 Pa. 276; Green & Coates St. Pass. Ry. v. Bresmer, 97 Pa. 103; Payne v. Reese, 100 Pa. 301; Mueller v. Ross Twp., 152 Pa. 399; D., L. & W.R.R. v. Cadow, 120 Pa. 559; Pittsburg & Connellsville R.R. v. McClurg, 56 Pa. 294; Erie v. Magill, 101 Pa. 616; Pittsburg etc. Ry. v. Taylor, 104 Pa. 306; Barnes v. Sowden, 119 Pa. 53; Brown v. Pitcairn, 148 Pa. 387; The Santissima Trinidad and the St. Andre, 7 Wheat. 283; Tietz v. Traction Co., 169 Pa. 516.

Edward A. Lynch, with him Wm. H. Hines and John T. Lenahan, for appellee, cited: Fritz v. Jenner, 166 Pa. 292; Patterson v. R.R., 76 Pa. 389; Lee v. Woolsey, 109 Pa. 124; Brownfield v. Hughes, 128 Pa. 194; Lancaster v. Kissinger, 11 W.N.C. 151; Kingston v. Gibbons, 18 W.N.C. 334; Mallory v. Griffey, 85 Pa. 275; Patterson v. R.R., 76 Pa. 389; Henderson v. R.R., 144 Pa. 479; Phila. R.R. v. Schultz, 93 Pa. 341; Baker v. Irish, 172 Pa. 528.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The learned judge of the court below charged the jury that under the testimony the defendant could not be held liable for negligence in the selection of the machine, and that the plaintiff had worked upon it long enough to know that it was unnecessary and unsafe to...