Leonard v. Herrmann

Opinion by

Mb. Justice Fell,

An employer is under an obligation to his employee to furnish reasonably safe machinery and appliances, but it is not in every case for a jury to determine the standard of safety. If it were there would be no means by which an employer could protect himself, as his judgment founded on his experience or the advice of those best able to advise him would be subject to review by others often utterly incompetent to form any intelligent opinion of the matter. The legal test of reasonable safety in machinery or methods is ordinary use, and a jury cannot be permitted to set up any other. The rule and the reasons on which it is founded are clearly stated by our Brother Mitchell in Titus v. R. R. Co., 136 Pa. 618, as follows: “ Absolute safety is unattainable, and employers are notinsurers. They are liable for the consequences, not of danger, but of negligence ; and the unbending test of negligence in methods, machiney and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed.”

The plaintiff was familiar with the elevator in the use of which he was injured. He had been employed at the defendant’s works for a number of years, and he had operated the elevator for at least one year. There was not the slightest evidence that the elevator was out of repair, "and the overwhelming evidence was that it was of a kind in ordinary use. There was no room for doubt on these subjects, and there was nothing which would have warranted a contrary finding by the jury. The plaintiff’s main reliance was upon his testimony that a week before the accident he had told the superintendent that there should be guards at the sides of the elevators, and that the superintendent had promised^ to provide them. But this testimony could not help the plaintiff’s case unless it appeared that there was in fact a defect which it was the duty of the employer to remedy. This did not appear, and no promise made by the defendant’s superintendent could give rise to a duty not recognized by law.

The instruction by the learned judge was clearly right, and the judgment is affirmed.