VOL. IV. THURSDAY, JANUARY 10, 1884.

COMMON PLEAS.

Cole v. Schall.

employer.

Plaintiff was employed in defendant's shops, where the

machinery was driven by a small engine fed by a pipe from the large boiler, and unattended by any one. By the breaking of the governor belt of this engine, the shafting was propelled at a high rate of speed, a pulley on this shaft was broken, and the plaintiff struck by one of the fragments, resulting in the breaking of a limb. HELD, That if the jury believed that the defendant did not exercise due care in having an engine thus unattended and the plaintiff was guilty of no contributory negligence, he was entitled to recover.

It is the duty of an employer to use due and reasonable care as to the safety of the appliances and machinery furnished by him. But, on the other hand, where servant accepts employment on defective machinery, either from its construction or want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment.

If plaintiff was placed in a position of peril by the accident which happened to the governor belt of the engine, and the jury believe this occured because of a want of reasonable care on the part of the defendant, the plaintiff

could not be held to the exercise of the soundest judgment under such circumstances of peril, and his right to recover would not be defeated because he was injured while trying to save the machinery in his charge.

Motion for new trial.

The facts in this case are set forth in the charge of the Court (WICKES, P.J.) to the jury.

GENTLEMEN OF THE JURY-The plaintiff Charles T. Cole has brought an action against Michael Schall the defendant to recover damages for injuries sustained by him while in the employment of the defendant. The relation they bore to each other was that of employer and employe, or more properly speaking of master and servant.

There are certain principles of law applicable to the relation, and which I will endeavor to state as correctly and fully as I can, in the brief time I have had to examine the question. You will bear in mind these principles of law, in consider ing the facts of this case, as in no other way can you arrive at a fair and intelligent verdict.

In the first place it is a fundamental principle of that relation, that the master shall furnish and maintain suitable instru

reasonable care, the degree and nature of which are to be estimated on a consideration of the facts of each particular case.

On the other hand the servant, when he enters into the engagement, accepts all the risks incident to his employment.

If he thinks proper to accept employment on defective machinery, either from its construction or want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment.

Again, says one of the cases, if the instrumentality by which the servant is to perform his duty is so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master is not liable for resulting damages; the servant in such case, being guilty of concurring negligence. In other words, as was said by the Supreme Court in a recent case, citing as authority for the doctrine, Wharton on Negligence 206: "In accepting an employment the employe is assumed to have notice of all patent risks incident thereto, of which he is informed, or of which it is his duty to inform himself. When therefore he undertakes hazardous duties he assumes such as are incident to their discharge, from causes open and obvious, the dangerous character of which he has had opportunity to ascertain." (id 214.) These are the general principles to which at this time I call your attention-there may be others to which I shall advert before closing this charge. Let up apply them to the case in hand.

When the plaintiff entered the service

of the defendant, he had a right to believe that the machinery furnished him to do the work alloted to him, was not only suitable for that purpose, but that reasonable care had been taken by his employer, to see that it was safe for the purpose for which it was to be used. This, however, did not absolve the plaintiff from the duty of informing himself of any patent de

fect in either the construction of the ma

chinery, or in the manner of propelling or using it, and before you can find for the plaintiff you must be satisfied not only that the defendant was guilty of negligence, which in this case would be a want of due and reasonable care, in providing defective machinery and propelling it in a dangerous way, but you must be fur

ther satisfied that the defect was not suf

ficiently obvious to be noticed by plaintiff and was not in fact observed by him. If it was, and he failed to speak of it and chose to continue in the service, he would

be guilty of concurring negligence him

self and could not recover.

When the plaintiff entered into the employment of the defendant he found the machinery and engines in the condition and position they were on the day of the accident. The pulley wheel had been encased in wood in the manner described by the witnesses, and the small engine which furnished the motive power to the pulley wheel was managed alike at both periods and during the intervening time. No change was made in either. The plaintiff alleges that to furnish a pulley wheel of this character, weakened as is contended by the holes drilled through its face, and the added strain or pressure upon it, caused by its increased size, was in itself an absence of that due and reasonable care on defendant's part, which the law required him to take, and which the plaintiff had a right to suppose

had been observed. He further insists that to permit the small engine to be run without the constant presence of an engineer or some one whose duty it was to

watch it and stop it, in event of such an accident as the breaking of the governorbelt which controls its motion, was also such negligence as makes him liable under the circumstances of this case. And witnesses have been produced to sustain these positions.

The defendant on the other hand in

sists, that the pulley wheel was not weak. ened by the "lining" as it was called, which was applied to it. That on the contrary it was strengthened, certainly if not strengthened, that its original strength was not impaired. And they have pro

duced a number of witnesses to establish this fact. The defendant also contends that it was not indulgence to run the small engine, without an engineer, and without the appliance known as an "automatic stop" and this position also, they have produced evidence to sustain.

The defendant further takes the position that even assuming the pulley wheel to be dangerous, and the method employed to run the engine also hazardous, that the defect in the one was patent, and that the plaintiff was bound to observe it and did observe it, and that he also knew the fact that no one was detailed whose special duty it was to watch the engine, and that he ought to have known the danger, and knowing and yet continuing in the service, he is guilty of concurring negligence, and cannot recover, and this is a correct statement of the law, if he knew or as a prudent man ought to have known, not only the facts, but the risk resulting from these facts.

It is for you to determine the questions at issue in this conflict of evidence regarding the wheel and the engine.

I confess I have not quite appreciated the importance of all this investigation touching the relative strength of the pulley wheel before and after it was bound

with this wooden rim. It seems to have been abundantly strong for the purpose it was intended for, so long as the agencies at work were only those contemplated in its use. It was only when the enormous

power of the engine was turned loose by the breaking of the belt, that the wheel was sent with such fearful speed, that it was broken into fragments.

There is nothing in the evidence to show that the strongest pulley wheel would

have withstood this tremendous force

certainly nothing to show that it is an absence of due and reasonable care not to

build machinery strong enough to resist such power.

I can but think, that if the

only evidence of negligence consisted in the fact that the pulley wheel broke under such circumstances, that the plaintiff would have a very slender case to submit to you. But how stands the evidence in regard to the engine.

The pulley wheel without the force transmitted to it by this engine was certainly harmless enough-the motive power which propelled it came from the small engine of which you have heard so much during the progress of the cause. This as we have seen, was fed from the boilers in the large shop, and the engineer was stationed in the large shop, at a considerable distance away-he could not see the small engine from where it was his custom to be. Was it negligence was it a want of reasonable care, on the part of defendant or those to whom he intrusted the management and control of matters of this charcter, to permit the small engine

to be thus unattended.

The defendant says not-and he has produced a number of witnesses who so testify. You are not to infer the negligence from the happening of the accident in this case, but was it such a risk as ought to have been guarded against by the exercise of due and reasonable care or did the defendant in good faith, fairly and reasonably deem it prudent to allow the engine to be run without an engineer to control it. If the former, plaintiff would be entitled to recover-if the latter, the defendant is entitled to your verdict. It is said by defendant, that even assuming the negligence in the management of the

engine, it would only be the remote cause of the injury, and for which the defendant would not be responsible. Whether it is the proximate or remote cause is a question for the jury to determine under the facts of each particular case.

Said the Supreme Court, in a case in which the same question was presented, "the jury must determine whether the facts constitute a continuous succession of

events so linked as to be a natural whole, or whether the chain is so broken as to become independent, and the final result cannot be said to be the natural and probable consequence of the negligence of defendants. The rule for determining what is proximate cause, is that the injury must be the natural and probable consequence of the negligence, and that it might and ought to have been forseen under the circumstances." It is for you to say, tested by this rule, whether the "running away" as it has been aptly called, of the engine, was the proximate or remote cause of this accident; if remote in the legal sense, then the plaintiff could not recover, in this view of the case-but if the proximate cause, and the elements of negligence to which I have before referred are found, then the plaintiff would be entitled to your verdict.

I have omitted one or two matters to which I ought to refer. It has been argued that defendant himself caused this accident, by slipping the band from the tight to the loose pulley of his machine, and thus give additional rein to the engine. But we must not forget that he did this at a time when he was notified of what had happened, to wit, the breaking of the governor belt of the engine, and when others were flying from the shop.— His position was one of peril, and he could not be held to the exercise of sound judgment at such a time. ment at such a time. Assuming it to be true, that he might have escaped had he not paused to look after his machine, such an error of judgment at such a time ought not to prevent a recovery, if he is otherwise entitled.

To recapitulate then what I have endeavored to make plain to you, in the hurry incident to the trial, if you shall be of opinion from the evidence that the defendant exercised himself or through his agents, and the presumption of law is that they were competent and careful persons, that due and reasonable care which the

law requires in furnishing safe machinery to this plaintiff, and that the engine which propelled it was run with due care to the safety of those employed in the shop or that the defendant in good faith believed it was run with reasonable care, then the plaintiff could not recover.

If on the contrary you find there was negligence on the part of defendant in either or both of these particulars, but that the risks were so obvious, that plaintiff knew them, or ought as a prudent man to have known them, and yet continued in the service, that then he would not be entitled to recover, because his negligence would have concurred with that of defendant, to produce the accident, and a recovery would be thereby barred.

But if you find the negligence of defendant and no concurring negligence on the part of the plaintiff, then your verdict will be for plaintiff-otherwise for the defendant.

If you shall find for plaintiff, then you will assess the damages he has sustained by reason of this accident. And you will remember, that it is the injury to to him, the plaintiff, that you are to compensate —you are not to add one dollar, because you may suppose the defendant is able to

and mental, far the inconvenience resulting from the disabled limb, and for any permanent loss of earning power; (13 P. F. S. 299.)

Among the Court's answers to plaintiff's points is the following:

An employer is only bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief.

It is not his duty to know of and provide every appliance known, that adds to the safety and convenience of the use of the machinery provided, he is only held to due and reasonable care in such matters. The question therefore is not what the defendant might have had, but whethhave an "automatic stop" on the small er it was a want of ordinary care not to

engine under the circumstances of this And this is a fact for the jury.

case.

Among answers to defendant's points was the following:

Whether the running away of the engine was a proximate or remote cause of the accident, is a question for the jury.

The jury found for the plaintiff. A motion was made for a new trial.

H. Keesey and V. K. Keesey for motion. Geo. B. Cole, H. H. McClune and W. C. Chapman, contra.

pay.

him?

The Supreme Court has given us the measure of damages in cases of this character, and they are such damages as necessarily result from the injury complained of. The plaintiff, if entitled to recover, has a right to be compensated for his actual expenses and loss of time in being healed, for his pain and suffering, bodily

The

disputed facts of the case, was of necessity for the jury-and was, we think, correctly submitted. What plaintiff's counsel said in argument to the jury was objected to at the instant and stopped. We discover no error which entitles the defendant to a new trial, and we therefore over-rule the motion and enter judgment upon the verdict.

C. P. of

Lee & Bro. v. Byers.

Chester County. Conditional Sale-Bailment-Vendor and Vendee-Execution Creditors.

As a rule, in cases of conditional sale, where possession is given to the purchaser, the right of reclamation, while good as between the parties, cannot be exercised against execution creditors of the vendee or bona fide purchasers from him without notice of the conditional agreement. A case which was held a conditional sale.

Replevin, No. 12, Jan. Term, 1883. The facts appear by the opinion of the Court, which was filed August 20, 1883. FUTHEY, P. J.-This case was an action of replevin. The defendant, Samuel Byers, pleaded non cepit and property in Robert Byers and Francis H. Gheen, and the two latter pleaded non cepit and property in themselves.

The facts of the case, as agreed upon, are briefly these :

a

The plaintiffs, manufacturers of agricultural implements, on or about August 1, 1882, placed in the possession of Samuel Byers, on a farm occupied by him, mowing machine and reaping machine, subject to his approval and option to purchase after trial. Subsequently, on Sept. 9, 1882, Samuel Byers gave to the plaintiffs two promissory notes for the price thereof, which notes were in the following form:

"WEST CHESTER, Sept. 9, 1882." "On the first day of March, 1883, the subscriber, whose Post Office is Berwyn, County of Chester and State of Pennsylvania, promises to pay to L. H. Lee & Bro., Baltimore, Md., or order, seventyseven dollars for value received, with interest from August 1, 1882, at five per cent. if paid when due, if not so paid, then interest shall be six per cent. from date, without any relief from valuation, appraisement or exemption laws, payable

at the National Bank of Chester County, Pennsylvania. The express

On October 28th, 1881, Samuel Byers, being indebted to Francis H. Gheen and to the National Bank of Chester County, executions and attachments were issued by them and these machines, in the possession of Samuel Byers, with other articles of personal property, were levied on. On October 31, 1882, Robert Byers and Francis H. Gheen advanced, for the relief of Samuel Byers, a large sum of money and took from him a bill of sale of the mower and reaper and other articles, in consideration of the money thus advanced, and further proceedings on the execution and attachment were staved.Robert Byers and Francis H. Gheen then advertised the property, thus purchased, for sale on the 9th of November follow

ing, on which day, and before the sale, the mower and reaper were replevied by the plaintiffs. Gheen and Robert Byers, when they advanced their moneys in relief of Samuel Byers and took the bill of sale, had no notice that the plaintiffs had any claim on or to the mower and reaper.