Cunningham v. Fort Pitt Bridge Works

Opinion by Mb. Justice Mitchelu, The facts as to how the accident occurred are practically undisputed. A number of iron flooring beams had been stored on one end of a pair of skids and it was desired to move them to the other end. They were something less than a ton each in weight, large and unwieldy in shape, being about fourteen feet long, from five to seven feet high, and stood upon edge on a flange which gave a base of live to seven inches according to different witnesses. There were eighteen of them in all, and to secure them in place they had been tied with rope to two upright pieces or standards at the end of the skids. They were moved by untying each one in succession and sliding it separately along the skids by hand “ inching ” it as one witness called it. Twelve of them had been safely shifted in this manner and the thirteenth was being moved, when from some cause not explained, one or more of the five which still remained, and which had only been tied to one of the uprights, tilted or fell over from its standing position, and breaking the upright by the strain fell on the deceased. We have looked through the evidence in vain for any negligence of the defendant. It is said that the deceased was inexperienced in such work and received no instruction in regard to it. None was necessary. The work was plain for all men to see. There was no hidden or latent danger that required instruction to avoid. That the moving of heavy and unwieldy pieces of iron on their edge was an operation requiring care to prevent any of them from falling over on the workmen was plain to any man of the most ordinary intelligence. The de [630] ceased had worked as a laborer and a railroad hand, work of the same general kind as this, and the fact that the girders were larger and heavier than usual did not change the nature of the work. ' It is further said that the skids were defective in their construction. But for that the defendant is not responsible. The materials were selected and the skids built by the “ shipping gang ” of which the deceased was a member, under very general orders from the superintendent which did not limit the materials or the mode of construction. Evidence was offered on the part of plaintiff and admitted that moving such heavy girders by hand was not the usual way in the.business, and that they should be moved by a crane or other machinery. The evidence fell far short of showing that moving by hand was not usual, but even if it had come fully up to the offer, it was introduced and submitted to the jury from an incorrect point of view. It was held in Titus v. Bradford, etc., R. R. Co., 136 Pa. 618, that an employer performs his duty when he furnishes appliances “ of ordinary character and reasonable safety, and the former is the test of the latter, for ■in regard to the style of the implement or nature of the mode of performance of any work, ‘ reasonably safe ’ means safe according to the usages, habits and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business.” This it must be observed is the test to disprove negligence not to prove it. The party charged with negligence ■disproves it by showing that the tools he employed were those in general use in the business, but the converse does not follow. ■ The party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held, the use of the newest and best machine if not yet generally adopted, could be adduced as evidence of negligence. Otir attention has been drawn recently to a tendency to this misapplication of the principle, on the part of counsel, and even the courts. In the present case the learned judge below, in a very clear and excellent charge stated the true rule in behalf of defendant, that it “ cannot be held responsible if something [631] happens to an employee in its employment, where the manner and machinery and methods and appliances are alleged to have been defective, when it is shown they are the ordinary methods, machinery and appliances used in that kind of work and business.” But he unguardedly followed this by summing up thus: “We leave it to you to say under all the evidence in the case .... whether the method of handling the structural iron by hand, shifting it by hand in the way it was shifted was the ordinary method used under all the circumstances of the case, and whether all the machinery and methods and appliances connected with the moving of these iron beams were such as were ordinarily used in the business generally for such work.” This might easily be construed by the jury as authorizing them to find negligence from the bare fact that the method was not in general use. There should always be a caution against such a construction, and the evidence should not in the first instance be admitted on behalf of the plaintiff unless it tends to show that the method pursued was not only unusual but more dangerous in itself than the ordinary one. As already said, the circumstances of the accident are practically undisputed. From them it is clear that the immediate cause was the failure to keep the girders that were not yet moved, securely tied to both the uprights, or the failure to make the uprights sufficiently strong. But even on plaintiff’s view, that defective construction of the skids themselves contributed to it, we fail to find evidence of any negligence in the case that was not that of coemployees. The jury therefore should have been directed to find S verdict for the defendant. Judgment reversed.