Gropp v. Carnegie Steel Co.

Opinion by

Beaver, J.,

The error of which the appellant complains lies within a very narrow compass. The general instructions of the trial judge in the court below and his answers to the numerous points presented by the defendant were in the main correct. The general principles of law governing the relation of master and servant in the use of machinery were carefully laid down and the relative duties of each fully explained. As to the point complained of the trial judge says: “ This is drawing a very fine line, but the whole thing turns right there and, when you come to that point, you have got to consider that question. Here is the plaintiff — a skilled workman. He sees the condition of things or is bound to see, just as the defendant’s superintendent is bound to see it, and it is for you to determine whether the evidence satisfies you, each of these men seeing, that the danger was not manifest to the plaintiff and yet was manifest and apparent to the defendant. If it was not manifest to either, neither of them has been guilty of negligence and the plaintiff cannot recover. If it was manifest to both, both have been guilty of negligence and the plaintiff cannot recover; but, if it was apparent to the defendant and if under the circumstances, it was not such as would be apparent to the plaintiff, and not comprehending or not being bound to anticipate this danger, he worked on when the defendant should have known that the danger was increasing, then the plaintiff may recover, because in that case the defendant would be guilty of negligence and the plaintiff would not.” The testimony in regard to the condition of the pan, as it was called, or rather the trough through which the wire ran to and from the rolls is very weak and doubtful. It is enough to go to the jury, because they are the judges of the credibility of a witness, and there is little else in it.

The only testimony upon the subject was that of Edward Gibbons, a helper of the plaintiff, whose regular position was much more distant from the rolls than that of the plaintiff who was tbe skilled workman. He testified that the pan was warped on the end of it — turned up. The plaintiff, who had worked at these rolls, called the first diamond, for four days immediately preceding the accident, and one of his witnesses, Wilson, also a skilled workman who worked at the same place, had neither of them seen it, as they testify. If it existed, it was such a defect as they ought to have seen, and seeing, to have reported to the superintendent of the mill. The plaintiff’s testimony in regard to the danger attending such a condition of the pan as is described by the witness Gibbons,’is clear. Gibbons says in his testimony that he told Mr. Wilson somebody would get hurt there, Wilson being a coemployee. He also says that “ it would work all right but it would some day catch it.” Wilson in his testimony says: “If the rod catches, it is bound to fly; if anything will hold the end it is bound to fly.” Here, then, is a defect which, if it existed, must have been patent to the plaintiff and to anyone working at the rolls. The danger, if the defect existed, must have been also apparent. He had large experience as a roller; had worked at these same rolls previously at sundry times, and continuously according to his turn for four days immediately prior to the accident. He admits in his own testimony that “ he could see as well as Mr. Rigley (the superintendent) or anybody else, and that his eyesight was as sharp as anybody’s else.” Leaving out of view all the testimony of the defendant, and considering this question solely from the testimony offered by the plaintiff, what evidence is there for submission to the jury from which they could find or infer that the defect complained of was apparent to the defendant, yet under the circumstances was not such as would be apparent to the plaintiff; and how was it possible, in the absence of any evidence upon that subject, for the jury to find that the plaintiff could continue his work “not comprehending or not being bound to anticipate this danger, when the defendant should have known that the danger was increasing ? ” There are no facts anywhere in the evidence upon which to base such a finding. There is no opinion of any witness, least of all of any expert, from which such a conclusion could be drawn.

Upon a careful examination of the whole case, we are of the opinion that the defendant’s fourth point should have been affirmed without qualification, and that his eighth point “ that under all the testimony the verdict must be for the defendant,” should also have been affirmed, and this upon the plaintiff's case as presented in the testimony adduced by him. The testimony of the defendant strengthens the moral aspect of its case, but not in any way its legal status. The judgment is reversed.