Wallace v. Henderson

• Decision Date: 06 March 1905
• Docket Number: 294
• Citation: 60 A. 574,211 Pa. 142
• Parties: Wallace v. Henderson, Appellant
• Court: Pennsylvania Supreme Court

60 A. 574

211 Pa. 142

Wallace v. Henderson, Appellant

No. 294

Supreme Court of Pennsylvania

March 6, 1905

Argued January 26, 1905

Appeal, No. 294, Jan. T., 1904, by defendants, from judgment of C.P. No. 1, Phila. Co., March T., 1903, No. 1775, on verdict for plaintiff in case of William F. Wallace v Henderson & Brother.Affirmed.

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

At the trial it appeared that plaintiff, a rigger in the employ of the defendants, was injured on December 20, 1902, by the breaking of a rope while working in and about the works of the Edison Light Company at Twenty-seventh and Christian streets in the city of Philadelphia.The allegation of negligence was that the defendant did not supply a block sufficiently large to enable a rope which had been spliced to pass through the block without being subjected to such a strain as to break.The circumstances of the accident appear by the opinion of the Supreme Court.

Defendants presented these points:

1.Under all the evidence the verdict must be for the defendants.Answer: Refused. [1]

3.Where the cause of the accident was the gross carelessness of one of the plaintiff's coworkmen, in that he rigged a fall in such a manner as to cause the rope to break or cut knowing it would cut and break, the defendants are not responsible and your verdict should be for the defendants.Answer: Refused. [2]

Verdict and judgment for plaintiff for $15,000.Defendants appealed.

Errors assigned were (1, 2) above instructions, quoting them.

Judgment affirmed.

John G. Johnson, with him M. W. Sloan, for appellants.-- There was no duty upon the part of the employers to furnish additional blocks until they knew they were required, because of the happening of something after the first supply had been made.The duty of notification was upon the employees.Their failure to perform it was the negligence of a coemployee, for which the employers were not responsible to a fellow workman.

Even if it be the duty of the employer to inspect from time to time in order that he may ascertain whether accidents have occurred, and if he is not entitled to rely upon the employees to report such accidents, there was no such duty in the present case: Ryan v. Cumberland Valley R.R. Co.,23 Pa. 384;Baker v. Allegheny Valley R.R. Co.,95 Pa. 211;Mullan v. P. & S.M.S.S. Co.,78 Pa. 25;Prescott v. Engine Co.,176 Pa. 459;Honifius v. Engineering Co.,196 Pa. 47;Dyer v. Bridge Co.,198 Pa. 182;Finnerty v. Burnham,205 Pa. 305;Kitchen v. Riter-Conley Mfg. Co.,207 Pa. 558;Phila. Iron, etc., Co. v. Davis,111 Pa. 597;McClain v. Henderson, 187 Pa. 283.

Thomas Leaming, with him John R. K. Scott, for appellee.--

Where a servant is injured by the negligence of the master in supplying an unsafe tool, his right of action exists even if there is another joint tort feasor, to wit: another servant.The master and the other servant are jointly and severally liable for the whole consequence.

In the only Pennsylvania case in which the point has ever been suggested, the assignment of error was abandoned upon the argument as worthless: Kaiser v. Flaccus,138 Pa. 332.

While the Pennsylvania decisions are silent on this subject, yet the learned trial judge is fully sustained by analogy.

Thus, the contributory negligence of a driver will not be attributed to a person in his vehicle: Borough of Carlisle v. Brisbane,113 Pa. 544;Finnegan v. Foster Township, 163 Pa. 135.

Nor will the contributory negligence of the driver of a street car at a steam railroad crossing be attributed to a passenger in the street car: O'Toole v. Pittsburg, etc., R.R. Co.,158 Pa. 99.

Nor will the contributory negligence of a parent be attributed to a child when the child sues for its own injuries: Kay v. Penna. R.R. Co.,65 Pa. 269.

Nor will the negligence of a tenant in failing to notify a gas company of an escape of gas be imputed to the landlord in his action against the gas company for damages to the premises: Northern Liberties Gas Co. v. Breslin,4 Walk. 384.

The decisions of Pennsylvania on the subject of defects in hoisting apparatus follow.Elevator cases are omitted.They, however, show a like tendency to hold defendants to an increasingly strict obligation: Mullan v. P. & S.M.S.S. Co.,78 Pa. 25;Baker v. Allegheny Valley R.R. Co.,95 Pa. 211;Prescott v. Engine Co.,176 Pa. 459;McClain v. Henderson,187 Pa. 283;Honifius v. Engineering Co.,196 Pa. 47;Dyer v. Pittsburg Bridge Co.,198 Pa. 182;Finnerty v. Burnham,205 Pa. 305;Kitchen v. Riter-Conley Mfg. Co., 207 Pa. 558.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and ELKIN, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The rope though spliced, and the block, were apparently both in good condition and safe tools for appropriate work, but not adapted to be used together, the rope being too large to pass safely through the block.Hence, when the splice reached the block it jammed, and under the strain from the engine, the block split and the rope instead of running smoothly in the groove of the sheave, slipped off and was cut in two by the sharp edge of the broken block, and started the chain of causes which produced the accident.The negligence charged, therefore, was in furnishing tools which were not safe and proper for use in combination.The evidence made this clearly a question for the jury.

The second assignment of error is the refusal to affirm defendants' point that "where the cause of the accident was the gross carelessness of one of the plaintiff's coworkmen, in that he rigged a fall in such a manner as to cause the rope to break or cut, knowing it would cut and break, the defendants are not responsible and your verdict should be for the defendants."This point could not have been affirmed as it stood, because it did not fully and accurately represent the case as presented by the evidence.It appeared that whether dangerous or not when used with what is known as a "straight lead," as to which the testimony is not entirely clear, the rope and block had in fact been so used without accident up to the day of plaintiff's injury.But on that day the workman in charge had...