Valjago v. Carnegie Steel Company

• Citation: 75 A. 728,226 Pa. 514
• Decision Date: 03 January 1910
• Docket Number: 158
• Parties: Valjago v. Carnegie Steel Company, Appellant
• Court: Pennsylvania Supreme Court

75 A. 728

226 Pa. 514

Valjago v. Carnegie Steel Company, Appellant

No. 158

Supreme Court of Pennsylvania

January 3, 1910

Argued October 28, 1909

Appeal, No. 158, Oct. T., 1909, by defendant, from judgment of C.P. No. 3, Allegheny Co., May T., 1906, No. 197, on verdict for plaintiff in case of George Valjago v. Carnegie Steel Company. Affirmed.

Trespass to recover damages for personal injuries. Before KENNEDY P.J.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $1,542.50. Defendant appealed.

Error assigned amongst others was in refusing binding instructions for defendant.

The judgment is affirmed.

David A. Reed, of Reed, Smith, Shaw & Beal, with him L. H. Burnett for appellant. -- It has everywhere been held that the risk of unguarded gears is one of the most obvious of all dangers from mechanical operations, and must be held to be appreciated by both adults and minors. Even in the federal courts, harsh as they are toward the employer in this class of cases, it is held that such a risk must be held to be appreciated by mere children: Eisenberg v. Fraim, 215 Pa. 570; Masterson v. Eldridge, 208 Pa. 242; Ruchinsky v. French, 168 Mass. 68 (46 N.E. Repr. 417); Burnell v. West Side R. Co., 87 Wis. 387 (58 N.W. 772); Higgins Carpet Co. v. O'Keefe, 79 Fed. Repr. 900 (25 C.C.A. 220).

The maxim volenti non fit injuria is of universal application throughout our whole tort law: Denver, etc., R.R. Co. v. Norgate, 141 Fed. Repr. 244; Thomas v. Quartermaine, L.R. 18 Q.B. Div. 685; O'Maley v. Gas Light Co., 158 Mass. 135 (32 N.E. Repr. 1119); Knisley v. Pratt, 148 N.Y. 372 (42 N.E. Repr. 986); Martin v. Chicago, etc., Ry. Co., 118 Iowa 148 (91 N.W. 1034).

An examination of the Pennsylvania cases in which this doctrine of assumption of risk was established shows clearly that no idea of contract was thought to be at the foundation of the principle: Frazie v. Penna. R.R. Co., 38 Pa. 104; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Pittsburg, etc., R.R. Co. v. Sentmeyer, 92 Pa. 276; Green, etc., Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Rummell v. Dilworth, 111 Pa. 343; Wannamaker v. Burke, 111 Pa. 423; Brossman v. Lehigh Valley R.R. Co., 113 Pa. 490; Philadelphia, etc., R.R. Co. v. Hughes, 119 Pa. 301.

A statute forbidden risk will be held to be assumed by the servant who appreciates it in precisely the same way that a common-law forbidden risk is held to be assumed: Thomas v. Quartermaine, L.R. 18 Q.B. Div. 685; O'Maley v. Gas Light Co., 158 Mass. 135 (32 N.E. Repr. 1119); Marshall v. Norcross, 191 Mass. 568 (77 N.E. Repr. 1151); Knisley v. Pratt, 148 N.Y. 372 (42 N.E. Repr. 986); Higgins Carpet Co. v. O'Keefe, 79 Fed. Repr. 900; Birmingham R. & E. Co. v. Allen, 99 Ala. 359 (13 So. Repr. 8); Denver & Rio Grande R.R. Co. v. Norgate, 141 Fed. Repr. 247; Lead Co. v. Swyers, 161 Fed. Repr. 687; Cordage Co. v. Miller, 126 Fed. Repr. 495; Glenmont Lumber Co. v. Roy, 126 Fed. Repr. 524; Martin v. Ry. Co., 118 Iowa 148 (91 N.W. 1034); Langlois v. Dunn Worsted Mills, 25 R.I. 645 (57 A. Repr. 910); Anderson v. Lumber Co., 67 Minn. 79 (69 N.W. 630); Swenson v. Osgood Mfg. Co., 91 Minn. 509 (98 N.W. 645); Helmke v. Thilmany, 107 Wis. 216 (83 N.W. 316); Kreider v. Wisconsin River Paper, etc., Co., 110 Wis. 645 (86 N.W. 662).

Congress or a state legislature, in adopting an English statute, is ordinarily deemed to have adopted also the definite and known construction put thereon by the English courts prior to its adoption: Willis v. Banking Co., 169 U.S. 259 (18 S.Ct. Repr. 347); Mining, etc., Co. v. Gardner, 173 U.S. 123 (19 S.Ct. Repr. 327); Tucker v. Oxley, 9 U.S. 34; Pennock v. Dialogue, 27 U.S. 11; McDonald v. Hovey, 110 U.S. 619 (4 S.Ct. Repr. 142); R.R. Co. v. Moore, 121 U.S. 558 (7 S.Ct. Repr. 1334); Warner v. Ry. Co., 164 U.S. 418 (17 S.Ct. Repr. 147).

The New York construction should prevail: Knisley v. Pratt, 148 N.Y. 372 (42 N.E. Repr. 986); McCarthy v. Emerson, 79 N.Y.S. 180; Sitts v. Knitting Co., 87 N.Y.S. 911; Stevens v. Gair, 96 N.Y.S. 303; Travis v. Haan, 103 N.Y.S. 973.

T. Mercer Morton, with him S. S. Robertson, for appellee. -- It is submitted this court will not say as a matter of law, plaintiff assumed the risk, but on the contrary a case was made out for the jury at common law: Bartholomew v. Kemmerer, 211 Pa. 277; Rummell v. Dilworth, 111 Pa. 343; Ricks v. Flynn, 196 Pa. 263; Sweigert v. Klingensmith, 210 Pa. 565; Schiglizzo v. Dunn, 211 Pa. 253; Laubach v. Copley Cement Co., 217 Pa. 361; Wilson v. Union Steel Castings Co., 223 Pa. 167; Patterson v. Pittsburg, etc., Ry. Co., 210 Pa. 47; Meade v. Pittsburg Rys. Co., 223 Pa. 145; Burnell v. West Side Ry. Co., 87 Wis. 387 (58 N.W. 772).

It has been settled law in this state for many years, that the doctrine of assumption of risk is based upon the contractual relation between the parties: Bowen v. R.R. Co., 219 Pa. 405; Priestley v. Fowler, 3 Mees. & W. 1; Masterson v. Eldridge, 208 Pa. 242; Nuss v. Rafsnyder, 178 Pa. 397; Schall v. Cole, 107 Pa. 1; Hough v. Ry. Co., 100 U.S. 213; Tuttle v. Detroit, etc., Ry. Co., 122 U.S. 195 (7 S.Ct. Repr. 1166).

The maxim volenti non fit injuria does not apply at all where the injury arose from a direct breach by the defendant of a statutory obligation: Federal Lead Co. v. Sawyer, 161 Fed. Repr. 161; Denver & Rio Grande R.R. Co. v. Norgate, 6 L.R.A. (N.S.) 981; Bryce v. Burlington, etc., R.R. Co., 119 Iowa 274 (93 N.W. 275).

Under all the testimony in this case the questions involved were of fact for the jury, under the statute as well as under the common law: Kiernan v. Eidlitz, 109 A.D. 726; Terre Haute, etc., R.R. Co. v. Voelkner, 129 Ill. 540 (22 N.E. Repr. 20) Yarmouth v. France, L.R. 19 Q.B. Div. 647.

Before FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ.

OPINION

MR. JUSTICE POTTER:

This was an action brought to recover damages for personal injuries suffered by the plaintiff on August 25, 1905, while employed by the defendant company. He was directed to work at a billet conveyor, which consisted of a series of rolls, which were turned by beveled gears, and these gears were uncovered. Plaintiff's duty was to pull billets of steel upon the conveyor, by means of a long hook with which he reached across the rolls. The operation of the rolls seems not to have been continuous, but they were only placed in motion as needed to feed the billets into the furnace. Ordinarily they were not in motion when the billets were being pulled upon the roll table by the men.

On the day of the accident, as the plaintiff was engaged in the performance of his duty, the rolls were started while he was standing in front of the uncovered cogwheels; a portion of his clothing was caught, and he was drawn in, and an arm was taken off by the rolls. The negligence with which defendant was charged, was leaving dangerous gearing or cogwheels uncovered.

The question of defendant's negligence and of contributory negligence upon the part of the plaintiff were left to the jury. The trial judge also called the attention of the jury to the claim of the defense, that the danger from the uncovered cogwheels was so obvious that the plaintiff must have assumed the risk of working near them. No point was presented asking for specific instructions as to the assumption of the risk, but a general point asking for binding instructions in favor of the defendant was presented and refused, as was a motion for judgment non obstante veredicto. In its opinion, refusing the motion, the court below said, that in view of plaintiff's ignorance of machinery and its dangers, and of the evidence that no instruction or warning was given to plaintiff, it would have been error to have given binding instructions for the defendant, even leaving out of view the effect of sec. 11 of the Act of May 2, 1905, P.L. 352, which requires that "all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws, grindstones, emery wheels, fly-wheels, and machinery of every description (in an establishment where machinery is used) shall be properly guarded." It is admitted that defendant failed to discharge this duty, which was imposed by the statute, and which might very well have been regarded as part of the duty of providing a reasonably safe place for the employees to work. As the case was tried, however, the defense of assumption of risk was left open to the defendant, notwithstanding its failure to provide the safeguards required by law.

Counsel for appellant are not satisfied, however, with the action of the court in leaving this question to the jury, but contend that the court should have held as a matter of law that under the circumstances of this case, the plaintiff did assume the risk, and cannot recover damages for his injuries. They urge the application of the maxim volenti non fit injuria. But before this maxim can be invoked, it must be shown that the plaintiff not only knew the circumstances, but that he also appreciated the full extent of the danger to which he was exposed by his employment, and that he voluntarily exposed himself to it. This makes the question of assumption of risk, one of fact, unless from the nature of the case, it is clear of dispute in this connection. Before the defendant can escape the consequences of its own negligence, upon the ground of the maxim volenti non fit injuria, it must appear clearly from the evidence, or there must be a finding of fact, that the plaintiff with full knowledge of the nature of the risk, impliedly took the chances of it. It is the consent of the plaintiff which destroys his right to recover, and how can there be consent without full knowledge? In the present case there is evidence that the plaintiff was a foreigner, with limited understanding of the English...