Bennett v. Standard Plate Glass Co.

Per Curiam:, We do not see how this cause could have been taken from the jury. The plaintiff was engaged strictly in the performance of his duty at the time of the accident, in the very manner in which his duty was to be performed. While it must be conceded that the plank walk over the pit containing the shaft was somewhat dangerous while the barrier was removed, it can hardly be said to have been imminently dangerous, so that no [124] prudent person would use it, because the plaintiff did use it safely for some time while in its impaired condition. It was his duty to inform his employer of its condition, but if the employer had notice of its condition, and did not repair it within a reasonable time, he was, under all authorities, guilty of culpable negligence in that regard. It was testified that the barrier had been removed for some time before the accident; the plaintiff said two or three weeks, other witnesses said three or four days. Either period was sufficient to enable the defendant to discover the defect, especially as it was testified that the general manager of the defendant was in the room almost every day. The case then presents simply the aspect of a defective appliance, which the defendant had ample opportunity to discover, but did not repair the defect, and the plaintiff received his injury while in the performance of his duty and without fault on his part. In such circumstances there can be no doubt that the jury would be justified in finding culpable negligence on the part of the defendant, and no contributory negligence on the part of the plaintiff, which they did under proper instructions from the court. Judgment affirmed.