Lee v. Woolsey , 1885 Pa. LEXIS 492 ( 1885 )

Mr. Justice Trunkey

delivered the opinion of the Court,

At the time of the accident the plaintiff was engaged in dangerous work, most of the circumstances of which are stated in the opinion of the court below on refusing the motion to take off the nonsuit. Had the learned judge put more stress on the conduct of the defendant it is probable that he would have submitted the case to a jury. The testimony warrants belief that while the work was in progress the defendant went to the men on the upper floor, complained of slow performance, and ordered the men to “go ahead and get the stock up;” that prior to that occasion the men removed the planks before calling to those below that they were ready, but that time they were not removed because there was “ too much of a hurry ; ” and that the plaintiff heard the defendant say “ all right,” which was the signal for the horse to start, and the horse was started without the plaintiff knowing whether or not the planks had been removed. The act of the defendant was closely connected with the fall of the plank. He was earnestly, if not angrily, pressing the laborers to haste, and giving them orders, which he had not done before; and it would have been strange ■had they exercised their usual caré and thoughtfulness.

If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it. A prompt and faithful employee suddenly called upon by a superior to do a particular act, cannot be supposed to remember at the moment a particular danger incident to its performance, of which he had previous knowledge; and it would be most unreasonable to demand of him the thought and care which might be exacted when there is more time for observation and deliberation : Wharton on Negligence, § 219. Like principle should be applied to the facts in this case. When the plaintiff was hurt he was working under the eye and voice of his employer who was urging speed, and saj-ing “all right.” Ho might have looked to see whether the planks were removed, and he might have taken time to have placed the jack-rafter at the foot of the gin-pole before starting the horse; but is it reasonable to exact such care of a laborer when his employer suddenly comes into the place of a foreman, pei'sonallv directs the work, and gives emphatic orders to move quickly ? The care to be exacted of the plaintiff is just that which laborers of ordinary prudence would exercise under like circumstances, and if the plaintiff did exercise it his action shall not be defeated on the ground of concurrent negligence.

Although the plaintiff was an actor in the act which resulted in his injury, whether he exercised due care under the circumstances is a question for the jury. He must show a ease clear of his concurrent negligence, a ease resulting exclusively from the negligence and wrong of the defendant, but when the measure of care which he ought to Lave exercised shifts with the circumstances, or when the care which ought to be exacted from an employee has been varied by the conduct of his employer, the jury alone can determine whether he negligently performed his duty. Only when the plaintiff’s testimony clearly shows his concurrent negligence, may the court order nonsuit on that ground. We think the testimony ought to have been submitted, and the first three assignments are sustained.

The fourth assignment is not well taken. No foundation was laid for admission of the rejected testimony.

Judgment reversed and procedendo awarded.