Brownfield v. Hughes , 1889 Pa. LEXIS 782 ( 1889 )

Opinion,

Mb Justice Sterbett :

This case was submitted to the jury in a voluminous charge of eighteen printed pages, wherein their attention was called to the facts which it was claimed the evidence tended to establish, as well as the principles of law applicable thereto. The jury by their verdict found that the injury complained of resulted from defendant’s neglect of duty, and that plaintiff below was not guilty of contributory negligence. It would be a waste of time to review either the evidence or the principles of law applicable to the case. The facts which the former tended to prove have been settled by the verdict, and, as to the latter, they have been so well settled by repeated decisions of this court that discussion of them is unnecessary.

There is no complaint as to the admission or rejection of evidence; but, it is claimed the evidence was insufficient. The last specification of error is to the refusal of the court below to instruct the jury that, under the evidence, their verdict “ must be for the defendant.” From a careful perusal of the testimony submitted to us, we think the court was clearly right in refusing to so instruct the jury. The evidence, which was somewhat conflicting, was quite sufficient to carry the case to the jury on the questions of negligence and contributory negligence involved in the issue.

Nor was there any error in the refusal of the court to charge, as further requested by defendant below, viz.: “ There is no evidence in this case that the omission to erect the platform was the proximate cause of the injury.” The facts upon which that question depended, were solely for the determination of the jury, and were properly submitted to them. In his fifth and sixth points, defendant below requested the learned judge to charge as follows, on the subject of proximate cause: “ The burden is on the plaintiff to show a negligent act of the defendant which was the proximate cause of the injury, and failing to do so the verdict should be for defendant: ” and, “ Unless the omission to have a platform erected around the engine was the proximate cause of the injury, the plaintiff cannot recover.” Both of these propositions were affirmed, and the jury must have found that the omission to have the platform erected around the engine was in fact the proximate cause of the injury. In view of the fact that there was abundant evidence of such omission on the part of defendant, it would have been error to withdraw the question from the jury. The sixth and seventh specifications are not sustained.

The subjects of complaint in the first and second specifications, respectively are portions of the general charge. We ■fail to discover any error in either of these excerpts, especially when they are considered, as they should be, in connection with other parts of the general charge.

The learned judge’s answer to the points recited in the third and fourth specifications of error, when considered in connection with what he said on the same subject in the body of his charge, is substantially correct. As a general rule, it is true that an employee who continues to use a machine which he knows to be dangerous, takes upon himself the risk of any accident that may result therefrom; but that principle has its qualifications, one of which is, that if the employee in pursuance of the promise of his employer to remedy the defect, and the risk be not such as to threaten immediate danger, continue in his employment and be injured, without fault on his part, the employer may be liable. That exception to the general rule is recognized in several cases, among which is Patterson v. Railroad Co., 76 Pa. 394, in which it is said: “But, when the servant in obedience to the requirement of the master incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution, the rule is different. In such case the master is liable for a resulting accident.” The facts of the present case, we think, fairly bring it within that exception to the general rule.

The fifth specification of error is not sustained. The answer therein complained of is free from error. There appears to be nothing in the record that requires a reversal of the judgment.

Judgment affirmed.