Mixter v. Imperial Coal Co.

Opinion by Mr. Justice Green, We are obliged to hold that the unqualified affirmance of the plaintiff’s point was error. The point was put too broadly and affirmed the culpable negligence of the defendant upon insufficient facts. The plaintiff was an employee of the defendant company and was claiming to recover damages of his employer for a-personal injury received in the course of his employment. We have many times held in such actions that the mere fact of the accident is not enough to establish negligence. There must be additional and affirmative proof of the particular negligence which caused the accident. Moreover, in order that an employer may be held liable to an employee for negligence when [397] the injury arises from some defect in the machinery or appliances in use by the plaintiff at the time of the accident, it is not enough to show that the defect existed at the moment of the accident. Such defects may suddenly arise in the course of the use of the machinery or appliances, without any opportunity for the master to know of them, and unless there is something in the testimony indicating at least an opportunity of previous knowledge, or that the facts were such that the master ought to have known of the defect, the culpable negligence of the master is not established. This subject was very fully considered in an opinion of our late Brother Clark in the case of the Phila. & Read. R. R. Co. v. Hughes, 119 Pa. 801. There a brakeman, stepping upon a defective brake in the course of his duty fell to the ground and was thrown under the wheels and injured, and we held it was not enough to show merely these facts in order to recover, but that affirmative proof was necessary showing some negligence of the company which produced the defect, or an opportunity of knowing of its existence or an insufficient inspection, before liability would arise. We held the same doctrine quite recently in the case of Mensch v. Pa. R. R. Co., 150 Pa. 598, and we do not feel that we can safety depart from these and other rulings of the same kind. The law upon this subject is very clearly stated in the opinion of Chief Justice Sharswood in the case of Baker v. The Allegheny Valley R. R. Co., 95 Pa. 211, thus: “A servant assumes all the ordinary risks of his employment. He cannot hold the master responsible for an injury which cannot be traced directly to his negligence. If it has resulted from the negligence of a fellow servant in the same employment, he must look to him and not to the master for redress. The master does not warrant him against such negligence. The duty which the master owes to his servants is to provide them with safe tools and machinery where that is necessary. When he does this he does not, however, engage that they will always continue in the same condition. Any defect which may become apparent in their use, it is the duty of the servant to observe and report to his employer. The servant has the means of observing any such defect which the master does not possess. It is not negligence in the master if the tool or machine breaks, whether from an internal original fault, not apparent when [398] the machine or tool was at first provided, or from an external apparent one, produced by time and use, not brought to the master’s knowledge. These are the ordinary risks of the employment which the servant takes upon himself: Ryan v. The Cumberland Valley R. R. Co., 11 Harris, 384.” In the present case the point presented by the plaintiff declared the liability of the master simply upon proof that the brake was out of order at the time of the accident, and that the plaintiff was thereby unable to control the car, so that it ran away with him. These are not all the conditions which are requisite to establish the negligence for which a master is responsible to his servant, and therefore it was error to affirm the point without qualification. In point of fact there was no proof of a defective brake at any moment prior to the happening of the accident, and whether there was such a state of circumstances as that the master might be held liable, we cannot discover from the facts in evidence as they now appear. We sustain the second specification of error. We do not sustain the first, because, although the testimony admitted would not be sufficient to establish liability of itself, yet it is near enough to the time of the accident to be some evidence as to what the defect, at that time, was. When it is supplemented by proof of the other facts which are necessary to create liability, if there are such facts, it’ may have some tendency to show what was the cause of the accident. In reference to the third assignment we can only say that, as the case in the court below seems to have been tried upon the erroneous theory developed in the plaintiff’s point, it will best subserve the interests of justice to grant another trial, so that an opportunity may be afforded to exhibit other facts, if there are such, tending to show the defendant’s liability. Were it not for this consideration we would have felt obliged to sustain the third specification of error. Judgment reversed and new venire awarded.-