Lillie v. American Car & Foundry Co. , 209 Pa. 161 ( 1904 )

Opinion by

Mb. Justice Fell,

The first error assigned is to the action of the court in dismissing jurors who were sworn by mistake and in directing others who had been selected by the parties to take their places. Two jurors who had been challenged were sworn with the others. The mistake was discovered as the plaintiff’s counsel commenced his opening address to the jury. The court directed these jurors to leave the box, and two jurors who had been agreed upon took their places. All of the jurors were then sworn. At the request of the defendant’s counsel an exception was noted, but no specific ground of objection to the action of the court was stated. The proceeding would have been more regular if the whole jury had been discharged and a new one empaneled. This was in effect what was done. The trial which had commenced came to an end. A new jury of twelve men who had originally been selected by the parties was sworn, and tried the case. In Pennell v. Percival, 13 Pa. 197, relied on by the appellant, a juror who had been sworn failed to appear at the trial, and another juror was put in his place without the consent of the parties. In that case the jury was not the one selected by the parties; in this case it was the one selected, and the defendant was deprived of no right and suffered no injury by the action of the court.

The remaining assignments are to parts of the general charge by which it is alleged that the case was submitted to the jury on an issue not raised by the pleadings nor decisive of the controversy. The plaintiff, an employee, was injured by the falling of a plank, which was a part of the original construction of an overhead runway in the defendant’s machine shop. One end of the plank rested on a hanger and the other on a window sill, and it was used by the workmen as a walk when oiling overhead machinery and adjusting and repairing the shafting and pulleys. It had originally been fastened by bolting or nailing, but the end at the window had become decayed and loosened. The negligence alleged was the failure to maintain the place in which the plaintiff was assigned to work in a reasonably safe condition. The instruction as to the nature and extent of the defendant’s duty to provide and maintain a reasonably safe place for its workmen and as to the burden of proof of negligence was full and accurate, but the distinction was not clearly drawn between the duties which an employer may delegate and those which he may not delegate so as to avoid responsibility. The question whether the defendant had performed its duty in the employment of competent men to make repairs was submitted with instructions that would permit a finding against it if it had not exercised reasonable care in this respect, and would prevent one-if it had. The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer: Lewis v. Seifert, 116 Pa. 628; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Casey v. Penna. Asphalt Paving Co., 198 Pa. 348. But as no question of the competency of the foreman and the men of the repair crew could arise unless the jury found that the place was unsafe, and since their neglect was not made the neglect of their employer, the instruction complained of did the defendant no harm but gave it a chance to which it was not entitled.

The judgment is affirmed.