Maines v. Harbison-Walker Co. , 213 Pa. 145 ( 1906 )

Opinion by

Mr. Justice Potteb,

The Harbison-Walker Company is engaged in the manufacture of fire brick and owns works at Blandburg, Cambria county, Pa. During the process of manufacture at these works, the fire clay, after being ground, was placed in circular pans for the purpose of mixing. The mixed clay was formerly shoveled out of the pans by hand, and placed upon trucks to be conveyed to the molds. But later, an improvement was introduced, called a “pan emptier” to carry the mortar from the pans to the trucks. This emptier consisted of a frame, carrying a revolving belt, passing around a roller at each end. The belt was operated by cogwheels at the upper end. Three pans were in use by the defendant, at this place, each pan having an emptier. The plaintiff was a pan tender; and was in charge of pan No. 3. . The cogwheels upon the emptier at this pan, were upon the side next to the workman. It appears from the evidence that there was no necessity for the cogwheels to he so placed, but that they could just as well have been changed, so as to be at the back of the belt, or upon the far side of it, from the pan tender. In fact they were so placed upon the “ emptiers ” at the other two pans used by the defendant company. The change in position of the cogwheels could easily have been made at any time when the machinery was at rest. The only danger from the cogwheels being upon the outside or front-of the belt, was the liability to the workmen of getting caught between the wheels, as they revolved.

The plaintiff had worked for years about the premises and was familiar with the machinery. He testified that he considered the arrangement of the cogwheels on this particular emptier, as dangerous; and that he had complained of it to the master mechanic. In reply he was told by the master mechanic that he would like to change the position of the cogwheels but that the superintendent would not give him time to do so. But he added “ I will change them on Sunday.” The change was not made then, and the plaintiff testifies that he thereafter called the attention of tbe master mechanic to the condition of the cogs repeatedly; as often as three or four times a week during a period of some six weeks, and that the answer was that the change would be made on Sunday, when the machinery was idle. Finally, on Monday, April 29, 1901, the plaintiff again called attention to the fact that the change had not been made, and again the promise was renewed, that the cogwheels would be changed the following Sunday. The plaintiff continued to work during that week. On the succeeding Monday morning, May 6, he went to the mill at a very early hour, about three o’clock in the morning, as was his duty, and he then found that the promise had again been broken, and no change in the position of the cogwheels upon the emptier had been made. He began work, however, and during the manipulation of the machinery in the effort to get it started, the sleeve of his right arm caught in the cogs, his arm was drawn in, and so badly mangled, that amputation was necessary.

This action was brought to recover for the damages thus caused. Upon the trial, a compulsory nonsuit was entered, upon the ground that the plaintiff by continuing to work with dangerous machinery after the time, when he was promised that the dangerous condition should be remedied, took the chances, and could not recover for the negligence of his employer. It is conceded by counsel for the appellee, that the question as to whether the defendant was negligent, and whether the danger from the cogwheels was so imminent and obvious, that a man of ordinary prudence would refuse to work about them, were questions for the jury. But it is contended that the master mechanic promised to make the change at a definite time, that is, on Sunday, .and when he failed to do so, the servant was not justified in continuing to work, except at his own risk. It must be noted, however, that the evidence does not show that the promise was limited to any particular or definite Sunday. But the Sunday following each complaint seems to have, been intended, as the next convenient .season, to make the change. The plaintiff says that the promise was made to him, time after' time, and that he continued to work upon the strength of the promise, which was apparently renewed from week to week. The question, therefore, is whether the plaintiff was negligent in continuing to work in the face of the fact that not only one promise of the employer had been violated, but a series of them. Or to put it in another way, had he at the time of his hurt, any reasonable expectation of the fulfillment of the promise, which had been made and broken, and renewed and broken, a number of times before ? It is not disputed that, if no exact or specified time is fixed, for the restoration of safe conditions, the suspension of the master’s right to avail himself of the defense of the servant’s knowledge of the defect, continues for a reasonable period. What that reasonable period is, would ordinarily be a question of fact for the jury.

Under the peculiar circumstances of this case, we feel impelled to hold that in spite of the plaintiff’s knowledge that the fulfillment of the promise had again been delayed, it was still an open question whether he was not justified in continuing to perform his duties. ■ Had but one promise been given, and that one broken ; had there been no renewals of the assurance previously given, from time to time, the case would be different. Certainly it was within the power of the master to ■take upon himself the risk of the work, and beyond doubt, the effect of the promise was to assume that risk, during the period covered by the promise. This protected the plaintiff until the morning upon which he was hurt. For clearly he worked under the promise until the close of the week, on Saturday. The change was to have been made under the last promise, upon the next day, Sunday. The plaintiff went to work before daylight on the following morning, Monday, and was hurt, almost immediately. Until then he had no opportunity to know that the change had not been made. We cannot say, therefore, that the mere fact that he observed immediately after the expiration of the time fixed, that the cogwheels had not yet been changed, and that he did not then (in consequence) at once refuse to go on with his work, is to be treated as controlling this case, as a matter of law. We think that under the peculiar circumstances here shown, the conclusion as to whether the plaintiff was negligent in continuing his work at the time, was a question of fact, which should have been left to the determination of the jury.

The assignment of error to the refusal to take off the compulsory nonsuit is sustained. The judgment of the court below is reversed, and a writ of procedendo is awarded.