Palkovitz v. American Sheet & Tin Plate Co. , 266 Pa. 176 ( 1920 )

Opinion by

Mr. Justice Moschzisker,

Plaintiff, Joe Palkovitz, alleging he had been injured through the negligence of his employer, the American Sheet & Tin Plate Co., sued in trespass and recovered a verdict, upon which judgment was entered; defendant has appealed.

On May 4, 1914, Palkovitz was engaged in hauling boxes of tinplate piled upon a four-wheel truck, the latter about three feet long and two feet wide, with steel axles at either end; the wheels were held in place on these axles by what are known as “cotter-pins,” some three and a half inches long. Defendant owned approximately 200 such trucks, and its employees, when occasion arose, could use any one of them which happened to be idle. On the morning of the accident, Palkovitz took the truck in question; he and a fellow employee, named Schuler, worked with it successfully for about two hours, when, with an ordinary load of 15 boxes thereon, Schuler pulling in front and plaintiff pushing behind, in a manner which he testified was necessary and usual under the circumstances, the cotter-pin holding the left-hand rear wheel broke, the wheel came off, and the load fell upon one of plaintiff’s hands, badly injuring it.

The testimony shows that, in using these trucks, defendant’s employees did not make an inspection, and were not supposed to do so, but took any that in a general way appeared fit for use. It also shows that the cotter-pin, the breaking of which caused plaintiff’s injury, was “old” and “worn thin” “right in the middle ......where it broke.”

While defendant’s employees, when handling the trucks, at times took out the cotter-pins for the purpose of greasing the axles, it also appears a man was employed to do such oiling and attend to all necessary repairs. This man stated that neither he nor anyone else made inspections; although, according to his testimony, the cotter-pins were apt to become flat, where they “rubbed against” the wheel, at a point which could not be seen “from the outside,” because, as he explained, “you would have to take the wheel off or take the pin out to see that.”

Without going further into the facts, it is apparent from those already stated that the issues of defendant’s alleged negligence and plaintiff’s contributory negligence were for the jury; and we are not convinced of any reversible error upon these points in the charge. It may be that what defendant now states as its theory of plaintiff’s contributory negligence was not precisely presented to the jury; but, after detailing the circumstances attending the accident, and particularly calling attention to the manner in which Palkovitz was pushing, with his back to the load, the jury were told more than once that, if plaintiff was “guilty of, or chargeable with, a lack of ordinary care,” or in any negligent manner contributed to his own injury, he could not recover. Moreover, at the end of his charge, the trial judge said to counsel: “Before taking up the points, is there anything we have overlooked?” To which defendant’s attorney replied: “We have nothing to suggest.” Under these circumstances, appellant cannot justly complain of the manner in which the issue of contributory negligence was submitted.

The point in the case which counsel for defendant most earnestly urges upon our attention concerns an alleged release, executed by plaintiff in favor of defendant company.

On June 15, 1914, Palkovitz put his mark to a typewritten document, by the terms of which, in consideration of the moneys to be paid him by his employer, he released the latter from all claims on account of his injury. He was paid $12 at the execution of this paper, and subsequently received other sums aggregating something over $106. Plaintiff, a Pole, was so ignorant of the English language that an interpreter was used at the trial. It also appears, in defendant’s evidence, that, recognizing plaintiff could neither read, write nor properly understand English, an interpreter was used to explain the document to him at the time the alleged release was executed. This interpreter, a man named Klamar, when called as a witness by defendant, testified there were parts of the paper which he, himself, could not understand, these being explained to him by other persons present at the time, which explanations he used in interpreting to plaintiff; but when the other persons were called, they were unable to tell just exactly what parts of the document they had explained or what explanations they had given in reference thereto. Klamar, when asked whether he had told plaintiff the money he would receive was to be “in full settlement of all claims for injuries,” replied that he had told him to sign the contract “for his relief”; and the witness repeated that he had informed Palkovitz the document “was a receipt for the relief and he couldn’t get the relief money unless he signed the paper.” In brief, defendant’s principal witness on this point plainly showed that the alleged release had not been properly explained to Palkovitz or fully read to him in a language which he could understand; on the contrary, the testimony bears out the assertion of plaintiff, to the effect that he placed his mark upon the paper believing it to be a mere receipt for relief money. No matter what, ordinarily, the proper rule of law may be in cases of this kind, it is clear that, under the circumstances at bar, defendant, after its own witness had destroyed the effectiveness; as a release of the writing in question, is not in a position successfully to maintain plaintiff failed to produce sufficient evidence to that end.

Appellant’s statement of questions involved suggest only two points concerning the matter in hand, and they go, first, to the sufficiency of plaintiff’s evidence to overcome the release, and, next, to certain rulings on the admission of testimony relating thereto; but, nevertheless, defendant’s counsel, in both their oral and written arguments, criticize certain parts of the trial judge’s charge, wherein he deals with this document and the manner in which its effectiveness might be destroyed. Since, however, so far as the binding effect of the release is concerned, on the evidence produced by defendant itself, instructions might have been given, with propriety, for plaintiff, and the rulings on the evidence were of a kind within the discretion of the trial judge, it is unnecessary to discuss the criticisms to which we have referred; and, moreover, since they are not comprehended by the statement of questions involved, we are not called upon to do so.

For the reasons stated, the assignments of error are overruled and the judgment is affirmed.