Naylor v. Frick Co.

Opinion by

Rice, P. J.,

The clear and satisfactory opinion filed by the learned trial judge in overruling the defendant’s motion for judgment non obstante veredicto contains a succinct and sufficiently comprehensive statement of the facts, and therefore the case need not be restated by us.

The learned counsel for the appellant admit the law to be that, when a servant remains in the service of his master after he has knowledge of the dangerous condition of the place in which he is engaged, he is presumed to assume the risk of the danger; but this presumption is rebutted if the master promises to repair the defect and the danger is not so obvious or imminent that negligence can fairly be imputed to the servant for exposing himself to it: Webster v. Monongahela River, etc., Coal & Coke Co., 201 Pa. 278. But the counsel contend that the presumption of assumption of risk by the plaintiff was not rebutted in the present case, because, first, the initial complaint of the defect was not made by him; second, the promise to repair the defect was not made to him; and third, he was not directed to continue the use of the defective appliance. This is taking a too narrow view of the evidence. The notice of the defect was given to the defendant’s superintendent by a coworker of the plaintiff, in his presence and' hearing, and the superintendent’s reply, “All right, shake cope out by hooking up on the flanges; I will get it fixed,” was evidently addressed to all the employees who were then and there engaged in the particular work. This being so, the plaintiff had as much right to rely on the promise thus made by the superintendent, after the latter’s knowledge of the defect, as the particular workman who called attention to it. There is more plausibility in the defendant’s second contention, which is, that by the usual, ordinary, and reasonable use of his senses the plaintiff was bound to know that the promised repair had not been made and that danger from the use of the defective appliance was imminent, and therefore he was guilty of contributory negligence. The difficulty with this proposition, or, at least, one difficulty, is that it involves questions of fact, which it was the province of the jury, not the court, to decide. The fact that four hours elapsed in which to repair the defect, which would take only fifteen or twenty minutes, justified the plaintiff’s belief which he testified he entertained, that the repair had been made; at least, the jury could so find. Hence, we are not able to declare, as matter of law, that he was guilty of negligence in not making examination to ascertain whether the repair had been made. Did he know that it had not been made? When the cope was being replaced on the drag the broken bolt in the handle clamp was on the opposite side from the plaintiff, and not then within his direct line of vision. The handle and rings on his side, in which he hooked the chain; were not out of order. But before the cope fell it swung around so that the broken bolt was on his side. It is strongly urged that he must have seen then, if he did not know it before, that the defect had not been repaired. We appreciate the force of this argument, but it is to be noticed that at that instant, according.to his testimony, he was engaged in inserting a pin through the flange, holding up the pin with his left hand, and having the nut, which he was about to screw on to it, in his right hand, and .before he was through with that the cope fell causing the injury. In view of his description of what he was doing, and the reasons he gave why he did not notice the broken bolt, because of which the handle clamp gave way, it was not the province of the court to declare that he must have seen the defect. He did not testify to an impossible thing, and whether he testified truly was for the jury. The rule of law was thus stated in a recent case: “That a servant may be guilty of contributory negligence in continuing to use a machine which he knows to be in dangerous condition, notwithstanding he has protested against such use, -and received the master’s promise to repair, is not to be- questioned; but, after all, the test of contributory negligence in such case is whether the danger in using the machine was so imminent that no man of ordinary prudence would assume the risk. Except where the danger is so imminent that a reasonably prudent man would not incur it, "’the servant may, in reliance on the promise of the employer to remedy it, remain for a reasonable period in the employment without forfeiting his right to recover for injuries received because of these conditions:” Glass v. College Hill Boro., 233 Pa. 457. This principle was held applicable in a case where the plaintiff continued in employment with full apprehension of the danger, on the assurance that the defects would be repaired. There is much stronger reason for saying that the right to recover damages for the defendant’s negligence was not forfeited by the plaintiff’s contributory negligence, where he continued to use the machine in the justifiable belief that the promised repair had been made. Very earnest argument is made that the verdict was against the great preponderance of testimony; but this is not so clear as to justify us in holding that the court committed an abuse of discretion in not granting a new trial upon that ground. For the reasons above suggested, taken in connection with the opinion of the learned trial judge, the last five assignments of error are overruled.

With regard to the first assignment, it is to be noticed that the court did not exclude the jurors who were employees of the defendant. Pie made a suggestion that in his opinion they should be excused by consent of counsel, and thus left it to the counsel to determine whether they would give consent or not. They chose to consent to the withdrawal of the jurors, and it does not appear that they did not have a fair trial before the jurors that were sworn in the case. If consent had not been given, the defendant would be in better position to call in question the remarks of the court. But, having given consent and not having moved to have a juror withdrawn and the case continued, we think the defendant must be deemed to have preferred to go on to trial notwithstanding the remarks that the court had made. Under these circumstances, the objection comes too late, after a fair trial and verdict.

The judgment is affirmed.