Brenneman v. P. H. Glatfelter Co.

Opinion by

Head, J.,

One of the alleged acts of negligence on which the plaintiff declared was the failure of the defendant company to properly guard certain cog machinery at the point where the plaintiff ivas injured. The learned trial-judge, after proper instructions, left it to the jury to determine whether or not, under the evidence, it was feasible and practicable to have guarded that particular portion of the machinery. We are of opinion he could not properly have done otherwise.

In Cappuccio v. Plumb, in which an opinion was handed down in July last, this court said:' “Section eleven of the Act of May 2, 1905, P. L. 352, declares: ‘The owner or person in charge of an establishment where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys. Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, etc., and machinery of every description shall be properly guarded.’ In Kelliher v. Brown & Co., 242 Pa. 499, Mr. Justice Mestrezat, speaking for the court, after quoting the first sentence of that section, said ‘The statute is mandatory and the failure to comply with it, resulting in injury to another without the latter’s fault, is actionable negligence. Had there been a proper shifter on the machinery, the plaintiff could have stopped it while he was bolting the chute.’ Even if it be conceded that the second sentence of the section just quoted, when considered with the first, limits the broad scope of the statutory mandate, we think the burden of proof wonld be on the owner of the machinery to show the existence of the exceptional case which would relieve from the statutory obligation.” The defendant, by parol testimony, sought to discharge this burden and offered considerable evidence to show that no guard was practicable at the point where the injury occurred. But this still left the question for the determination of the jury after being properly instructed by the court.

So, too, as to the allegation of the plaintiff’s contributory negligence. On this question the charge to the jury was adequate and correct, and furnishes no ground for any just complaint. No assignment of error does complain of the charge of the court as such, but the specifications are confined to the answers to the several points presented by the defendant. We shall review them briefly.

There is nothing in the record to make this case an exception to the general rule that the refusal by the court to grant a new trial cannot be made the subject of an assignment of error. The first point presented by the defendant was too broad and might have been refused. There is no presumption of law that because a youth has reached the age of nineteen years, he is affected with knoAvledge of all of the dangers that may attend his employment with and about machinery. Such knowledge can come only from instruction, observation or experience. It might be that such person could be fairly presumed to know what would be matters of ordinary knowledge to persons of reasonable intelligence at his age. But the point was not limited in these respects and the answer was as favorable as the plaintiff had a right to expect. The second specification is overruled.

The second point, third specification, asked the court to declare, as matter of law, that there was no necessity to give to the plaintiff any instruction as to the danger of coming in contact with the revolving gears because such danger was patent. The point assumes too much. The danger of injury in case of actual contact with the revolving gears might fairly be said to be obvious. But the danger of coming into such contact by wiping grease at a certain place or in a certain way was not a question of law with which the court could deal. The specification is overruled.

The answer of the learned trial judge to the third point we regard as a correct statement of the law since the passage of the Act of 1905, and this assignment is without merit.

The answer to the fifth point was a substantial affirmance and in no way that we can perceive worked any injury to the defendant. Indeed, it seems to us to have only emphasized the legal principle for which the defendant contended. Whilst a party is entitled to an affirmance of a point which clearly and adequately expresses a relevant legal principle, we have had occasion to say that this duty can be properly performed even though the learned trial judge does not confine his answer to the one word “affirmed.”

We have already indicated that in our judgment this was a case for the jury, and consequently there could have been no error in the refusal of the court to direct a verdict for the defendant. We are all of the opinion the case was well tried and the plaintiff’s judgment should not be disturbed. The assignments of error are overruled.

Judgment affirmed.