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YORK LEGAL RECORD. mentalities for the duties required of his

servants. He does not, nor is he required THURSDAY, JANUARY 10, 1884. No 45. to warrant the safety and proper condition

of the appliances or machinery furnished, COMMON PLEAS.

for it is obvious that no degree of care

can insure perfect safety, and it would be Cole v. Schall.

most unjust to the employer to require it. Master & Stewart-Negligence-Duty of He is therefore only bound to use due and employer.

reasonable care, the degree and nature of Plaintiff was employed in defendant's shops, where the which are to be estimated on a consideramachinery was driven by a small engine fed by a pipe from the large boiler, and unattended by any one. By the tion of the facts of each particular case. 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 ove of the

On the other hand the servant, when fragments, resulting in the breaking of a limb. Held, That if the jury believed that the defendant did not exer:

he enters into the engagement, accepts all cise due care in having an engine thus unattended and the plaintiff was guilty of no contributory pegligence, he

the risks incident to his employment. was entitled to recover.

If he thinks proper to accept employIt is the duty of an employer to use due and reasonable care as to the satety of the appliances and machinery fur ment on defective machinery, either from nished by him. But, on the other hand, where servant accepts employment on defective machinery, either from its construction or want of proper repair, its construction or want of proper repair, and with knowledge of the facts enters on the service, the master cannot and with knowledge of the facts enters be held liable for injury to the servant within the scope of the danger which both the contracting parties contem- on the service, the master cannot be held plated as incidental to the employment.

If plaintiff was placed in a position of peril by the acci- liable for injury to the servant within the dent which happened to the governor belt of the engine, and the jury believe this occured because of a want of scope of the danger which both the conreasonable care on the part of the defendant, the plaintiff could not be held to the exercise of the soundest judgment tracting parties contemplated as incidentunder such circumstances of peril, and his right to recover would not be defeated because he was injured while trying al to the employment. to save the machinery in his charge.

Again, says one of the cases, if the inMotion for new trial.

strumentality by which the servant is to The facts in this case are set forth in perform his duty is so obviously and imthe charge of the Court (WICKES,P.J.) to mediately dangerous that a man of comthe jury.

mon prudence would refuse to use it, the GENTLEMEN OF THE JURY :The master is not liable for resulting damages; plaintiff Charles T. Cole has brought an the servant in such case, being guilty of action against Michael Schall the defend concurring negligence. In other words, ant to recover damages for injuries sus- as was said by the Supreme Court in a tained by him while in the employment recent case, citing as authority for the docof the defendant. The relation they bore trine, Wharton on Negligence 206: "In to each other was that of employer and accepting an employment the employe is employe, or more properly speaking of assumed to have notice of all patent risks master and servant.

incident thereto, of which he is informed, There are certain principles of law ap- or of which it is his duty to inform himplicable to the relation, and which I will self. When therefore he undertakes hazendeavor to state as correctly and fully as ardous duties he assumes such as are inciI can, in the brief time I have had to ex- dent to their discharge, from causes open amine the question. You will bear in and obvious, the dangerous character of mind these principles of law, in consider which he has had opportunity to ascering the facts of this case, as in no other tain.” (id 214.) These are the general way can you arrive at a fair and intelli- principles to which at this time I call your gent verdict.

attention—there may be others to which In the first place it is a fundamental I shall advert before closing this charge. principle of that relation, that the master Let up apply them to the case in hand. shall furnish and maintain suitable instru- When the plaintiff entered the service

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of the defendant, he had a right to believe watch it and stop it, in event of such an that the machinery furnished him to do accident as the breaking of the governorthe work alloted to him, was not only belt which controls its motion, was also suitable for that purpose, but that reason- such negligence as makes him liable unable care had been taken by his employer, der the circumstances of this case. And to see that it was safe for the purpose for witnesses have been produced to sustain which it was to be used. This, however, these positions. did not absolve the plaintiff from the duty

The defendant on the other hand inof informing himself of any patent de sists, that the pulley wheel was not weakfect in either the construction of the ma

ened by the “lining'' as it was called, chinery, or in the manner of propelling which was applied to it. That on the or using it, and before you can find for the contrary it was strengthened, certainly if plaintiff you must be satisfied not only not strengthened, that its original strength that the defendant was guilty of negli- was not impaired. And they have progence, which in this case would be a want | duced a number of witnesses to establish of due and reasonable care, in providing this fact. The defendant also contends defective machinery and propelling it in that it was not indulgence to run the a dangerous way, but you must be fur- small engine, without an engineer, and ther satisfied that the defect was not suf- without the appliance known as an “auficiently obvious to be noticed by plaintiff tomatic stop”—and this position also, they and was not in fact observed by him. If have produced evidence to sustain. it was, and he failed to speak of it and chose to continue in the service, he would

The defendant further takes the posibe guilty of concurring negligence him- tion that even assuming the pulley wheel self and could not recover.

to be dangerous, and the method employWhen the plaintiff entered into the ed to run the engine also hazardous, that employment of the defendant he found the defect in the one was patent, and that the machinery and engines in the condi

the plaintiff was bound to observe it and tion and position they were on the day did observe it, and that he also knew the of the accident. The pulley wheel had fact that no one was detailed whose special been encased in wood in the manner de- duty it was to watch the engine, and that scribed by the witnesses, and the small he ought to have known the danger, and engine which furnished the motive power knowing and yet continuing in the service, to the pulley wheel was managed alike he is guilty of concurring negligence, and at both periods and during the interven- cannot recover, and this is a correct stateing time. No change was made in either.

ment of the law, if he knew or as a pruThe plaintiff alleges that to furnish a

dent man ought to have known, not only pulley wheel of this character, weakened the facts, but the risk resulting from these as is contended by the holes drilled facts. It is for you to determine the ques

tions at issue in this conflict of evidence through its face, and the added strain or pressure upon it, caused by its increased regarding the wheel and the engine. size, was in itself an absence of that due I confess I have not quite appreciated and reasonable care on defendant's part, the importance of all this investigation which the law required him to take, and touching the relative strength of the which the plaintiff had a right to suppose pulley wheel before and after it was bound

with this wooden rim. It seems to have had been observed. He further insists

been abundantly strong for the purpose that to permit the small engine to be run

it was intended for, so long as the agencies without the constant presence of an en- at work were only those contemplated in gineer or some one whose duty it was to its use. It was only when the enormous

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power of the engine was turned loose by engine, it would only be the remote cause the breaking of the belt, that the wheel of the injury, and for which the defendwas sent with such fearful speed, that it ant would not be responsible. Whether was broken into fragments.

it is the proximate or remote cause is a There is nothing in the evidence to show question for the jury to determine under that the strongest pulley wheel would the facts of each particular case. have withstood this tremendous force

Said the Supreme Court, in a case in certainly nothing to show that it is an ab- which the same question was presented, sence of due and reasonable care not to

"the jury must determine whether the build machinery strong enough to resist facts constitute a continuous succession of such power. I can but think, that if the events so linked as to be a natural whole,

or whether the chain is so broken as to only evidence of negligence consisted in the fact that the pulley wheel broke under become independent, and the final result such circumstances, that the plaintiffwould cannot be said to be the natural and pro

bable consequence of the negligence of have a very slender case to submit to you.

defendants. The rule for determining But how stands the evidence in regard to the engine.

what is proximate cause, is that the injury

must be the natural and probable conseThe pulley wheel without the force quence of the negligence, and that it might transmitted to it by this engine was cer

and ought to have been forseen under the tainly harmless enough—the motive pow-circumstances." It is for you to say, tester which propelled it came from the smalled by this rule, whether the "running engine of which you have heard so much away' as it has been aptly called, of the during the progress of the cause. This engine, was the proximate or remote cause as we have seen, was fed from the boilers of this accident; if remote in the legal in the large shop, and the engineer was

sense, then the plaintiff could not recover, stationed in the large shop, at a consider in this view of the case—but if the able distance away—he could not see the proximate cause, and the elements of small engine from where it was his custom negligence to which I have before referto be. Was it negligence—was it a want red are found, then the plaintiff would be of reasonable care, on the part

of defend

entitled to your verdict. ant or those to whom he intrusted the

I have oniitted one or two matters to management and control of matters of which I ought to refer. It has been arthis charcter, to permit the small engine gued that defendant himself caused this to be thus unattended.

accident, by slipping the band from the The defendant says not-and he has pro- tight to the loose pulley of his machine, duced a number of witnesses who so and thus give additional rein to the entestify. You are not to infer the negligence gine. But we must not forget that he did from the happening of the accident in this at a time when he was notified of this case, but was it such a risk as ought what had happened, to wit, the breaking to have been guarded against by the ex- of the governor belt of the engine, and ercise of due and reasonable care-or did when others were flying from the shop.the defendant in good faith, fairly and His position was one of peril, and he could reasonably deem it prudent to allow the not be held to the exercise of sound judgengine to be run without an engineer to ment at such a time. Assuming it to be control it. If the former, plaintiff would true, that he might have escaped had he be entitled to recover—if the latter, the not paused to look after his machine, such defendant is entitled to your verdict. It an error of judgment at such a time ought is said by defendant, that even assuming not to prevent a recovery, if he is otherthe negligence in the management of the wise entitled.



To recapitulate then what I have en and mental, far the inconvenience resultdeavored to make plain to you, in the ing from the disabled limb, and for any hurry incident to the trial, if you shall be permanent loss of earning power ; (13 P. of opinion from the evidence that the de- F. S. 299.) fendant exercised himself or through his

Among the Court's answers to plainagents, and the presumption of law is that

tiff's points is the following: they were competent and careful persons, that due and reasonable care which the

An employer is only bound to provide law requires in furnishing safe machinery for the safety of his servant in the course to this plaintiff, and that the engine which of his employment, to the best of his propelled it was run with due care to the judgment, information and belief. safety of those employed in the shop or

It is not his duty to know of and prothat the defendant in good faith believed vide every appliance known, that adds to it was run with reasonable care, then the the safety and convenience of the use of plaintiff could not recover.

the machinery provided, he is only held

to due and reasonable care in such matIf on the contrary you find there was

ters. The question therefore is not what negligence on the part of defendant in either or both of these particulars, but

the defendant might have had, but wheththat the risks were so obvious, that plain- have an automatic stop” on the small

er it was a want of ordinary care not to tiff knew them, or ought as a prudent man to have known them, and yet continued engine under the circumstances of this

And this is a fact for the jury. in the service, that then he would not be entitled to recover, because his negligence Among answers to defendant's points would have concurred with that of defend was the following: ant, to produce the accident, and a recov- Whether the running away of the enery would be thereby barred.

gine was a proximate or remote cause of But if you find the negligence of de- the accident, is a question for the jury.

a fendant and no concurring negligence on

The jury found for the plaintiff. A the part of the plaintiff, then your verdict will be for plaintiff-otherwise for the de motion was made for a new trial. fendant.

H. Keesey and V.K. Keesey for motion. If you shall find for plaintiff, then you

Geo. B. Cole, H. H. McClune and will assess the damages he has sustained W. C. Chapman, contra. by reason of this accident. And you will

January 12, 1884. WICKES, P. J.remember, that it is the injury to to him,

Upon a careful review of this case we are the plaintiff, that you are to compensate

of the opinion that the answers to the --you are not to add one dollar, because points taken in connection with the charge you may suppose the defendant is able to

of the Court, which is now filed, contains pay.

a correct statement of the law. The For what then are you to compensate question of negligence arising under the him ?

disputed facts of the case, was of necessity The Supreme Court has given us the for the jury-and was, we think, correctly measure of damages in cases of this char- submitted. What plaintiff's counsel said acter, and they are such damages as nec- in argument to the jury was objected to at essarily result from the injury complained the instant and stopped. . We discover of. The plaintiff, if entitled to recover, no error which entitles the defendant to has a right to be compensated for his a new trial, and we therefore over-rule actual expenses and loss of time in being the motion and enter judgment upon the healed, for his pain and suffering, bodily verdict.


YORK LEGAL RECORD. conditions of the sale and purchase of the

champion new mower and reaper, for THURSDAY, JANUARY 17, 1884. No 46. which this note is given, is such that the

title, ownership, and possession does not COMMON PLEAS.

pass from the said L. H. Lee & Bro., un

til this note, with interest, is paid in full; Lee & Bro. v. Byers.

the said L. H. Lee & Bro. have full power C. P. of

Chester County.

to declare this note due and take possesConditional Sale-Bailment- Vendor and

sion of the said champion new mower Vendee-Execution Creditors.

and reaper at any time they may deem As a rule, in cases of conditional sale, where possession is given to the purchaser, the right of reclamation, while this note insecure, even before maturity good as between the parties, cannot be exercised against execution creditors of the vendee or bona fide purchasers

of the same. from him without notice of the conditional agreement. A case which was held a conditional sale.

“Witness : Replevin, No. 12, Jan. Term, 1883.

“A. A. Hamilton." “Samuel Byers.” The facts appear by the opinion of the On October 28th, 1881, Samuel Byers, Court, which was filed August 20, 1883. being indebted to Francis H. Gheen and

FUTHEY, P.J.—This case was an action to the National Bank of Chester County, of replevin. The defendant, Samuel executions and attachments were issued Byers, pleaded non cepit and property in by them and these machines, in the posRobert Byers and Francis H. Gheen, and session of Samuel Byers, with other artithe two latter pleaded non cepit and prop- cles of personal property, were levied on. erty in themselves.

On October 31, 1882, Robert Byers and The facts of the case, as agreed upon,

Francis H. Gheen advanced, for the reare briefly these :

lief of Samuel Byers, a large sum of The plaintiffs, manufacturers of agricul- money and took from him a bill of sale of tural implements, on or about August 1,

the mower and reaper and other articles, 1882, placed in the possession of Samuel in consideration of the money thus adByers, on a farm occupied by him, a

vanced, and further proceedings on the mowing machine and reaping machine, execution and attachment were staved.subject to his approval and option to pur

Robert Byers and Francis H. Gheen then chase after trial. Subsequently, on Sept.

advertised the property, thus purchased, 9, 1882, Samuel Byers gave to the plain- for sale on the 9th of November followtiffs two promissory notes for the price ing, on which day, and before the sale, the thereof, which notes were in the follow

mower and reaper were replevied by the ing form :

plaintiffs. Gheen and Robert Byers, when

they advanced their moneys in relief of “WEST CHESTER, Sept. 9, 1882."

Samuel Byers and took the bill of sale, "On the first day of March, 1883, the had no notice that the plaintiffs had any subscriber, whose Post Office is Berwyn, claim on or to the mower and reaper. County of Chester and State of Pennsylvania, promises to pay to L. H. Lee &

Can the plaintiffs, on this state of facts, Bro., Baltimore, Md., or order, seventy

maintain their action of replevin ? This seven dollars for value received, with in- question, we are of opinion, is settled by terest from August 1, 1882, at five per

the recent cases of Stadtfeld v. Huntsman cent. if paid when due, if not so paid, then & Co., 10 W.N.C. 216, and Brunswick v. interest shall be six per cent. from date,

Hoover, Ib. 219. These cases discuss the without any relief from valuation, ap- subject so fully, that a further citation of

authorities is unnecessary. praisement or exemption laws, payable

the National Bank of Chester The plaintiffs had given Samuel Byers County, Pennsylvania. The express possession of the mower and reaper, with


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