Sopherstein v. Bertels

Opinion by Mr. Justice McCollum The learned judge of the court below charged the jury that under the testimony the defendant could not be held liable for negligence in the selection of the machine, and that the plaintiff had worked upon it long enough to know that it was unnecessary and unsafe to put his foot on the treadle while his hand was on the die. The questions whether the defendant had provided a reasonably safe machine and adequately instructed the plaintiff as to the manner of using it were thus eliminated from the case. The first specification of error complains of the answer to the defendant’s second point, in which the court was requested to instruct the jury that the burden was on the plaintiff to prove that “ he was not guilty of any negligence contributing in any degree to the injury he suffered.” An unqualified affirmance of the point would have constituted plain error. The rule which defines the duty of the plaintiff, in this particular, is thus stated by the present Chief Justice in Baker v. Gas Co., 157 Pa. 601. “ Contributory negligence is matter of defense, and the onus probandi is on the defendant, unless the plaintiff’s own evidence sufficiently discloses the fact of contributory negligence. In that event the plaintiff cannot recover, and of course the defendant is relieved from the necessity of proving what has already been established by the plaintiff’s evidence. If, however, the plaintiff makes out a prima facie case, without disclosing contributory negligence, the defendant must assume the burden of making out his defense.” See also Canal Co. v. Bentley, 66 Pa. 30; Mallory v. Griffey, 85 Pa. 275. As the instruction complained of is in exact accord with the rule as above stated, the first specification is overruled. The second specification of error is based on the refusal of the court to affirm the defendant’s fourth point. The point requested the court to hold that upon the plaintiff’s own testimony he was guilty of contributory negligence, or that the injury [407] he received “ was caused by one of those unforeseen accidents against which human imperfection cannot provide.” The conclusions were not warranted by the testimony referred to in the point. It does not follow as a principle of law that because the plaintiff discovered and informed the superintendent on W ednesday that the machine was out of order, and continued to operate it after the superintendent had done some work upon it and pronounced it all right, that he was chargeable with contributory negligence, or that the injury he received was caused by an “ unforeseen accident against which human imperfection cannot provide.” The cases cited to sustain this branch of the plaintiff’s contention are plainly distinguishable in their facts from the case at bar, and we find no sufficient warrant in any of them for an affirmance of the fourth point. The plaintiff testified that the plunger dropped twice on Wednesday when his foot was not upon the treadle. This was notice to him that the machine was defective, or out of order. He also testified that he notified the superintendent of the condition of the machine ; that the latter came on Thursday and fixed it, and then told him it was all right, and to go ahead; that on Friday while placing the tin bottle or cover in the die, the plunger dropped, inflicting the injury of which he complains. His testimony was corroborated by the testimony of Abram Engle and Max Shoenfelt. The third, fourth and fifth specifications of error may be considered together. They .are based on the refusal of the court to affirm the defendant’s fifth, sixth and seventh points. The fifth point assumes that the uncontradicted evidence of all the witnesses, familiar with the manner of operating the machine, shows that in putting the bottle or cover into the die there was no necessity for the exposure of the fingers, or any part of the hand to danger or injury, and the sixth point asserts that the uncontradicted evidence shows there was no necessity for the exposure of anything more than the end of the fingers in operating it. In the fifth point the conclusion was reached, from all the evidence, referred to therein, that the plaintiff “ unnecessarily exposed himself to danger and that the injury he suffered was in consequence of such unnecessary exposure,” and in the sixth point a like conclusion was drawn from the testimony mentioned in it and the character of the injury itself. The [408] seventh point asserts that it appears from the evidence as to the operation of the machine, the plaintiff’s own testimony in connection therewith, and the character of the injury suffered, that the plaintiff was guilty of contributory negligence, and concludes that “ the verdict must be for the defendant.” The learned judge of the court below negatived these points because an affirmance of them would withdraw from the consideration of the jury questions of fact which he thought it was their province to decide. We do not think that he erred in his answers to the points. The credibility of the witnesses who testified in support" of the defendant’s theory that it was not possible foi the plunger to fall unless the foot was on the treadle, or it was touched in some way, was for the consideration of the jury, as well as the credibility of the witnesses who testified that they saw the plunger fall when they saw the treadle was not touched. The' same may be said of the witnesses who testified that in putting the- bottle or cover into the die there was no necessity for the exposure of the fingers or any part of the hand to danger or injury, and of the witnesses whose testimony on this point was directly opposed to theirs. 1 The sixth specification is founded upon the answer to the defendant’s eighth point. The point was affirmed with a qualification intended to prevent a misapprehension of it. We think the answer to the point was not erroneous or objectionable, and that the defendant has no good reason to complain of it. The seventh specification rests upon the refusal of the court to affirm the defendant’s ninth point. The point was that “ under the pleadings and all the evidence in the case the verdict should be for the defendant.” It will be seen from what we have already said that we cannot sustain this specification. The eighth specification is not according to rule. It contains the offer of evidence, but does not include any part of the testimony admitted under it. But waiving this, we think the evidence offered and received was competent. It was offered and admitted for the purpose of showing that the machine was defective or out of order shortly before the occurrence in question. It showed that the plunger dropped while the boy who preceded the plaintiff in operating the machine was there, and further that in that case as in this the foot of the operator was not upon [409] the treadle when the plunger dropped. It also showed that the boy quit work because his employer would not fix the machine for him. W e cannot say that the charge was inadequate. The principles governing the action were carefully and clearly defined in it, and all the issues of fact were plainly and correctly presented to the jury for their consideration. The evidence was not reviewed in it and there was no request that it should be. It was absolutely impartial and there was no expression or statement in it having the slightest tendency to mislead the jury in any particular. There is not an omission or instruction in it which furnishes any ground for reversing the judgment. It may be that the jury should have found for the defendant. But as we are clearly of opinion that the evidence in the case presented issues of fact which it was their province to decide, we refrain from any discussion in regard to the credibility of the witnesses on either side, or the weight of the testimony. The specifications of error are overruled and the judgment is affirmed.