McFadden v. City of Philadelphia , 248 Pa. 83 ( 1915 )

Opinion by

Mr. Justice Frazer,

Plaintiff sought to recover damages for the death of her husband, which she alleges was caused by defendant’s negligence. Her husband' was employed by defendant as a laborer at the Queen Lane Pumping Station in defendant city, and at the time of the accident, which resulted in his death, was working as a “coal passer.” It was his duty in connection with other employees, to load the coal on a car having a capacity of approximately a ton; to push the same to an elevator by which it was raised from the basement to the floor above, known as the boiler or fire-room floor. Thé elevator, which was intended for freight purposes only, was 7 ft., 11 inches in length, and 5 ft., 6 inches in width, and was operated by hydraulic power between the basement and the boiler-room floor, a distance of 11 ft., 10% inches, requiring 56 seconds to make the trip between the two floors. It was started hy operating a valve located a short distance from the elevator, and automatically stopped when it reached its destination. There was no means provided by which it could be stopped while in transit. The loaded cars were pushed by the workmen upon a turntable, which was attached to and made part of the elevator, and when the elevator reached the first floor the car was run off on a track to a point near the boilérs and unloaded. In taking up the coal, it was customary for the coal passers to ride on the elevator standing at the corners of the car.

On the day of the accident after placing the car on the elevator, plaintiff’s husband with two other employees got upon the platform, applied the power and started for the floor above. Almost immediately, and while the elevator was in motion, the turntable upon which the car rested, began to sway or tilt to one side which alarmed the plaintiff’s husband, who left the place at which he was standing and made an effort to leave the elevator. Finding the distance too great to the basement floor, he attempted to return to the position previously occupied by him near the car, and in so doing was caught between the elevator and the floor, and crushed to death. Defendant’s chief engineer, who had charge of the pumping station and of all persons employed there, was familiar with the practice of the coal passers in using the elevator in going from one floor to the other, but made no objection to their doing so, nor was a notice posted in the station or at any other place prohibiting the use of the elevator by employees. That the turntable had to some extent become defective by reason of several of the wheels used in its operation having become flattened, is established by the testimony, and also that this defective condition at times caused the car, especially when filled with coal, to tilt to one side or the other. This condition had existed for about one year previous to the accident to plaintiff’s husband. The negligence alleged was the use of an elevator with defective parts, which were hot known to plaintiff’s husband. At the trial a verdict was rendered in favor of plaintiff, which was followed by a' mption for judgment for defendant, non obstante veredicto. This motion was refused by the court below, and that action assigned as error. The first, second and fourth assignments of error, raise the question now before us, namely, whether under the facts as stated above the court below erred in not directing a verdict for defendant or in not entering judgment in its favor, non obstante veredicto. It is well established law that a master owes his servant the duty of providing for him a reasonably safe place in which to work and reasonably safe instrumentalities with which to perform his work; and it is also settled that where dangers from defects exist and áre as apparent to the employee as to employer, the former will be held to have assumed the risk.

Plaintiff’s husband had been working as a coal passer for six days previous to the accident and was not aware of the defect in the turntable which caused the car to tilt; that condition, however, was known or should reasonably have been known to the engineer in charge of the pumping station. Witnesses testified that for at least one year previous to the accident, cars on the turntable had from time to time swerved or tilted, and that while no accidents resulted from such tilting, injury to employees was averted by their familiarity with the use of the elevator. Such knowledge, however, cannot be attributed to plaintiff’s husband.

It is argued by appellant that McFadden voluntarily assumed a position of peril which he could easily have avoided had he remained standing near the car, and that in so doing he is chargeable with contributory negligence, and that it was the duty of the trial judge to so charge. We cannot agree with this contention. It is not claimed that he was aware of the flattened wheels in the turntable constructions, nor does it appear anywhere in the testimony that he knew that a tilting or swerving of the turntable was likely to happen. While it is true that he declined to use the elevator upon previous occasions and used the stairs leading to the boiler-room floor instead of riding on the elevator with those engaged with him, his refusal was not the result of knowledge of a defect in the turntable appliances and the likelihood of its tilting or swaying while traveling from one floor to the other, but rather from the danger-of riding in a place that was open and unguarded. Nor could the trial judge have charged as a matter of law that McFadden was guilty of contributory negligence in not using the stairs instead of the elevator, when plaintiff’s testimony was sufficient, if believed, to show that the large quantity of coal in the basement, about 150 tons, blocked the way to them and prevented their use. Neither can contributory negligence be imputed to him because he left a place of safety for one of danger. He undoubtedly and in good faith believed he was in peril when the car tilted and did what the average person would do under similar circumstances, attempt to get off the elevator. Whether in so doing, his act was that of a prudent man, was for the jury and was fairly presented by the court below.

The third assignment of error relates to the admission of evidence intending to show that the method of starting, stopping and controlling the elevator in question was not the method in usual and customary use. It had already been shown that the elevator was without means of being stopped between the two floors, and that if control from the car had been possible the accident would not have occurred. This testimony was in point especially in view of the testimony to the effect that the device used was not the customary and usual method for controlling elevators of the class in use at the Queen Lane Station, and further that such elevators should be equipped so that they could be controlled and a stop made at any time. One witness testified that he knew of no other elevator equipped with a starting and stopping appliance similar to the one in this case. The method used in the Queen Lane elevator was not only unusual but Avas more dangerous than systems in ordinary use. The testimony was therefore properly admitted: Cunningham v. Ft. Pitt Bridge Works, 197 Pa. 625. Although this assignment of error is defective in not stating the name of the witness under examination, whose testimony is referred to above, we have under the circumstances of this case given it consideration: Gerwig v. Johnson Co., 207 Pa. 585.

The assignments of error are overruled and the judgment affirmed.