Walbert v. Trexler , 156 Pa. 112 ( 1893 )

Opinion by

Mr. Justice Mitchell,

The general principles of law governing the case were clearly and correctly given to the jury, who were told that negligence and not danger was the foundation of the liability of defendants, that the plaintiff must prove negligence and that it was the cause of the injury, and that the injury was received while Walbert was in the line of his duty as an employee of defendants. The appellants’ substantial complaint is that the judge did not take the questions from the jury and decide them as matter of law. He could not safely have done so on either point.

The negligence alleged was in continuing to use a leaky boiler. At least two witnesses testified that this was a source of danger, and should not have been done by a prudent man. Whether either of these witnesses was really a scientific expert, whose opinion should be relied on, whether their reasons for considering the use of the boiler imprudent were consistent with each other, and whether either really showed that the explosion was in fair probability caused by the leak, are matters on which we may entertain doubts, but they -were questions of fact for the determination of the jury. In the face of this positive testimony, the court could not have assumed that the injury did not result from the alleged cause.

In regard to the other point, what Walbert was doing at the instant he met his death, there were several matters necessary to be considered and settled by the jury. First, the element of time, and secondly of place. It was admitted on both sides that the hours of work began at six thirty A. M. The time of the accident was variously testified to from six six to six twenty. While the appellants’ contention that the employer’s liability does not begin until the employee’s service has actually begun, is in general entirely sound, yet the rule cannot be held absolutely to the stroke of the clock. The deceased lived a mile away from the works. In strict law he was bound to be there when the whistle blew, and he was entitled to a reasonable margin in arriving so as not to be late. There was testimony that he was in the habit of using his time under such circumstances in oiling and getting ready the machine on which he worked. Whether this was work with which he might occupy his employer’s time does not appear, but even if it was, the coming a little early and getting to work a short time before lie was actually required to, is not usually regarded as a fault in a workman which should deprive him of compensation when injured. The learned judge told the jury that the employer owed no duty to one who came at an unreasonable hour, and if Walbert came an hour or two before his time and sat around with other people, he was not in the line of his duty, but declined to say as matter of law that such was the case here, and left that fact under all the evidence to the jury. In this he was right. Then as to place, it appeared that Walbert’s post was in a shed, not part of the boiler house where the explosion took place, and that he had just entered the door of the house when he was injured. But there was also evidence that he was. in the habit of sharpening the knife with which he worked, as a preliminary to the occupation of the day, and that the oil and whetstone used for this purpose were kept in the engine house, the usual entrance to which, before the opening of the works in the morning, was through the doorway in which he was injured, There was evidence from which the jury were at liberty to infer that he was at that place at that time to get the oil and whetstone, and if so that he was reasonably within the scope of his employment.

What has been said disposes of the fourth, fifth and seventh assignments of error. The points in the first, second and third assignments are substantially correct statements of the law, and might have been affirmed. But they are so expressed that the jury might have been misled in their application to the case, unless they were somewhat amplified and explained. This the learned judge was under no obligation to do. Having once correctly stated the law, he was not bound to reiterate it in the words chosen by counsel: Com. v. McManus, 143 Pa. 64. And he was careful to negative the points without reading them to the jury, so that no confusion could have arisen in their minds between the law given to them affimatively in the óharge, and that which, though apparently the same, was refused.

The point in the sixth assignment was affirmed as matter of law, but the judge added that he knew of no evidence that would warrant the facts stated in it. No such evidence was pointed out to the court below or to us. What was said in the argument is an inference only. The court was not bound to submit that to the jury.

Judgment affirmed.