Wannamaker v. Burke

Mr. Justice Paxson delivered the opinion of the court, January 25th, 1886. The first and second assignments may be considered together. They allege error in the answer of the court to the defendants’ first and second points. While differing in [428] phraseology they raise substantially the same question. The second point is as follows: “ That if the jury believe the hole was for a useful purpose, a means of conveying the waste and sweepings to the cellar of the building, and in such a position in the room as not to be in the ordinary line of travel, the fact that it was uncovered or covered by boards laid across it at the time of the accident is not evidence of negligence upon the part of the defendants, and their verdict must be for the defendants.” The court below declined both points. We do not understand the facts of which this point is predicated to be disputed. The action was brought in the court below for injuries received by plaintiff while in defendants’ employ, by falling into a hole in the floor of one of the upper stories of the building in which their business is conducted. The defendants have a large tailoring establishment at the corner of Sixth and Market streets in the city of Philadelphia. The building is several stories in height. The room in which the accident occurred was in one of the upper stories and had, up to a few daj^s previous to the occurrence, been used as the shirt manufactory, which was a branch of defendants’ business, but it had befen concluded to convert it into a cloth sponging room, and at the time of the accident the moving of the shirt department out, and the cloth department in, was being proceeded with. Some alterations of the room were necessary in order to adapt it to its new use, and the carpenters connected with the establishment, plasterers and other mechanics were making said alterations, and the employees of the shirt and cloth departments were assisting in the moving. The hole into which the plaintiff fell was used in carrying on the shirt business, for the purpose of getting rid of the debris and waste necessarily incident to said business. It was the opening into a chute running down into the cellar; the dirt as it accumulated was swept up daily, and into the hole, from whence it fell down to the cellar where it was gathered up and taken away or destroyed. In size it was about fourteen inches square ; it was situated one inch from the side wall of the room, and prior to the alterations had been protected from approach on one side by a rafter or girder which ran to the center of the ceiling, and on the other side by a railing about a foot from it, the railing serving the additional purpose of fencing a small room used as a shop to repair the sewing machines operated by the employees. It is not disputed that while so protected the hole was perfectly safe. A short time prior to the accident, in the course of the alterations referred to, the railing and machine shop were moved into the shirt room where they were needed, leaving the hole protected only on one side by the wall of the building and on [429] the other by the girder referred to. The time consumed in the repairs was from two to four days, and during that time the hole was being used to carry the dirt caused by the repairs, such as broken plaster, &c., down to the cellar. When not so used it was covered by two pieces of board, and was so covered when the accident occurred. It was alleged, however, that the boards were too short, and were not fastened down to the floor. The plaintiff alleged that being suddenly called to assist with some goods he jumped with one leg over the girder, and fell with this leg into the hole, by means of which he sustained serious injury. The plaintiff denied that he was under the influence of liquor, indeed he swore he had not drank anything; and the jury have found that he was not so much intoxicated as to contribute to the accident. That he was to some extent under the influence of liquor is plain enough if human testimony is of any weight, the evidence for the defence being overwhelming upon this point, while the only witness called for this purpose by the plaintiff swore that he smelled liquor upon his breath, and would not say that he was not intoxicated. That he was a man of intemperate habits was proved by a number of witnesses, one of whom was his own wife, called by the plaintiff himself. In view of the finding of the jury upon this point we do not predicate anything thereof; it is only mentioned as a part of the history of the case, and to show the facts as they stood at the time the instruction referred to was- asked by the court. If the hole had been in the middle of the room, near a passage way, or where persons were accustomed to pass and repass in the regular course of business, it would have been perhaps a question for the jury whether leaving it uncovered, or insufficiently protected, even for a short space of time, was not negligence. But here was a small hole in the floor on the extreme side of the building, within one inch of the wall, outside of the ordinary walks of any one, which had always been carefully guarded until the alterations rendered it necessary to take the guards away; which was being used constantly during the alterations to get rid of the sweepings; which was only open for from two to four days while the alterations were in progress, and only open then when not in actual use ; which was intended to be, and was permanently covered as soon as the alterations were finished. And even as it was the plaintiff had to pass the obstruction of the girder before he fell into it. The defendants could not have anticipated such an accident as this as likely to flow from the condition of the hole at that time, and they are not to be held to a rule which would prevent the possibility of an accident. If they took reasonable care to provide a safe room for their em [430] ployees to work in, it was all tbe law requires. It would be unreasonable to hold them to the same degree, of strictness during alterations to the building as might be required after such alterations were completed. The fact that alterations were being made in the presence of the employees was notice to them of the possibility of danger of some sort, and of the necessity of exercising greater caution. None of the essential facts being in dispute the defendants had the right to call upon the court to declare the law. We are of opinion that the points referred to should have been affirmed. It was not error to refuse the defendants’ third point, in the precise phraseology in which it was worded. But we think it was error to refuse the fourth point. If the plaintiff knew of the hole in the floor before the accident, and continued working in the room without complaining to the defendants or manager of the business, and calling his or their attention to the danger, so that it might be remedied, under all the authorities he took the risk of accident. It was said in Mansfield Coal Company v. McEnery, 10 Norris 185: “ It has been repeatedly held, in fact there is no conflict of authority upon this question, that where an employee has knowledge of machinery being defective and dangerous, and in the course of his employment continues to use it without notifying his employer of such defect and asking him to repair, he voluntarily accepts the risk, and cannot in case of injury from such cause recover damages therefor.” We also sustain the last assignment. Under the evidence the learned judge would have been justified in giving a binding instruction to find for the defendants. None of the other assignments requires discussion. Judgment reversed.