Wallace v. Henderson

Opinion by Mr. Chief Justice Mitchell, The rope though spliced, and the block, were apparently both in good condition and safe tools for appropriate work, but not adapted to be used together, the rope being too large to [145] pass safely through the block. Hence, when the splice reached the block it jammed, and under the strain from the engine, the block split and the rope instead of running smoothly in the groove of the sheave, slipped off and was cut in two by the sharp edge of the broken block, and started the chain of causes which produced the accident. The negligence charged, therefore, was in furnishing tools which were not safe and proper for use in combination. The evidence made this clearly a question for the jury. The second assignment of error is the refusal to affirm defendants’ point that “ where the cause of the accident was the gross carelessness of one of the plaintiff’s coworkmen, in that he rigged a fall in such a manner as to cause the rope to break or cut, knowing it would cut and break, the defendants are not responsible and your verdict should be for the defendants.” This point could not have been affirmed as it stood, because it did not fully and accurately represent the case as presented by the evidence. It appeared that whether dangerous or not when used with what is known as a “ straight lead,” as to which the testimony is not entirely clear, the rope and block had in fact been so used without accident up to the day of plaintiff’s injury. But on that day the workman in charge had substituted what is known as a “ crooked lead,” that is a pull around a corner or angle instead of a straight pull, necessitating the passage of the rope through a block at the angle. All the witnesses agreed that such “ crooked lead ” subjected the rope to a severer strain and hence was more dangerous. The act of the fellow workman in making this change is the “ gross carelessness ” mentioned in appellants’ point. But the point was defective in overlooking the testimony that the change was made necessary by the act of one of the appellants themselves on that morning in taking away the engine which had been used up to that time, and thus compelling resort to another engine which owing to its position could only be used with a “ crooked lead.” The statement in the point, therefore, that the “ cause of accident was the gross carelessness of one of plaintiff’s coworkmen ” was a partial and incomplete statement of the case as it stood on the evidence, and could not have been affirmed. Whether if the point had fully covered the case it could [146] have been affirmed is not altogether clear. It is founded- on the view that where injury occurs to an employee through the joint negligence of the employer and a coemployee the former is not liable. The current of authorities is distinctly the other way. In Pennsylvania the point does not seem to have been expressly decided. Appellants cite Philadelphia Iron and Steel Co., v. Davis, 111 Pa. 597. In that case a heavy fly wheel which was driven in contact with a cog wheel on a shaft after being in use two or three years showed a tendency to work loose and slide along the shaft. To remedy this defect two clamps were put on the wheels to keep them in contact. On -the day of the accident one of the clamps broke and flew off with great force, but fortunately injured no one. The engineer, without reporting the break to the superintendent of the mill, continued the operation, until a few hours later the other clamp burst and the plaintiff was injured. The trial judge charged that if the wheel was a dangerous appliance with the two clamps, of which there was evidence, the fact that it was more so with only one would not relieve the employer from liability. This was held to be error, this court saying that the breaking of the first clamp was notice to the engineer that the whole strain which had been borne by the two clamps would now come on the single remaining one, and “ under such circumstances we cannot resist the conclusion that the proximate cause of the plaintiff’s injury was the carelessness of a fellow workman.” The decision is thus put upon the ground that the negligence of the employer and the coemployee were not strictly concurrent but were separated by such an- interval of time and change of conditions as made that of the employer a remote and not a proximate cause of the injury. The case, however, as far as it goes, leans towards appellants’ view. On the other hand, in Kaiser v. Flaccus, 138 Pa. 332, the trial judge expressly charged that “ the concurring negligence of a fellow servant with the negligence of the master will not relieve the master of liability,” and the case was affirmed per curiam without further comment on this point than that the assignment of error upon it was “ practically abandoned on the argument.” This was in accordance with the weight of the authorities in other states. See the cases collected in 12 Am. & Eng. Ency. of Law, (2d ed.), 905-8. [147] The question where a tool sent out in good order becomes defective and dangerous during even a long operation, how far the employer can be held liable without express notice, does not arise in this case, as the evidence is that the employer, one of appellants, was present and superintending the operation at or shortly before the accident. Judgment affirmed.