Duffy v. Platt

Opinion by Mr. Justice Fell, No question of the competency of the foreman who had charge of the carding room in which the plaintiff was employed was raised by the pleadings or by the testimony. He had had thirty-four years’ experience in managing carding machines, and [298] the testimony adduced by the plaintiff affirmatively showed that he was fully competent. Yet in the general charge and by the answer to the defendants’ first point, the question of his competency was submitted to the jury. This error requires a reversal. In determining whether a new venire should be granted or judgment entered for the defendants, we have considered the other questions raised. The facts established by the plaintiff’s testimony were these: The plaintiff was over fifteen years of age, and had been employed at the defendant’s mill for two years. A few days before the accident he had been advanced and put to work in the carding room as an operator, where a part of his duty was to remove the waste which accumulated on the machines. While he was doing this, his hand was caught by a revolving cylinder. It was intended that this cylinder should always be covered when the machine was in operation. A proper cover was provided for it which should have been removed only when it became necessary to do so in cleaning the machine. On the day of the accident the workman whose duty it was to clean and regulate the machines was called to another room, and the foreman did his work. Why the cylinder was uncovered at the time of the accident, and whose fault it was, did not appear except by inference from the fact that two hours before the foreman had cleaned the machine. But his negligence in this regard imposed no liability on the defendants. He was a foreman in charge of this room and- another, and worked under the direct supervision and instruction of the defendants, receiving his orders from them each day; and in cleaning the machine he was doing the work of an ordinary workman. He was clearly a fellow servant, for whose negligence his employers were not answerable: Ricks v. Flynn, 196 Pa. 263; Spees v. Boggs, 198 Pa. 112; Hughes v. Leonard, 199 Pa. 123. The judgment is reversed, and judgment is now entered for the defendants.