Brown v. Armstrong & Latta Co.

Opinion by Mr. Justice Moschzisker, A shipment of lumber while being unloaded from a railroad car fell and injured the plaintiff, a laborer in the employ -of the defendant corporation which was engaged in constructing the lumber and concrete portions of a bridge. The load was at least six feet high and consisted of long “stringers”; it was supported and kept in place by stanchions or uprights on, both sides held together at the top by wires. At the direction of one Beamer the plaintiff cut certain of these supports, which caused the lumber to fall. The testimony shows that Beamer employed the plaintiff and others; that at first he sent him to another place to work but subsequently brought him to the location of the bridge; that he had charge of, superintended and directed the work of the plaintiff and his fellow-workmen prior to and at the time of the accident; and that he not only employed the men, but at least one had been discharged by him. A witness for the plaintiff testified that Beamer had charge of the [553] defendant’s work at Ocean City where the bridge was being constructed, that he was the “superintendent of the bridge” who “gave the orders himself right straight out”; and another who was employed on the job said that Beamer had charge of and always directed the performance of all his duties. The defendant claimed that Beamer was merely a gang boss without authority to hire or discharge men and not in any sense a superintendent; but the defendant’s witness admitted that Beamer was in a position where, after being told what to do, he went ahead without consulting others above him, and that he was responsible for what he and the men under him did. The question of Beamer’s relation to the defendant corporation was, therefore, for the jury, and the issue was fairly submitted and found against the defendant. The questions remain, first, was there sufficient in the testimony to show negligence on the part of the defendant, and second, was the plaintiff clearly guilty of contributory negligence? The jury could have found from the testimony that Beamer ordered several of the employees of the defendant company “to go to work in a great big hurry”; that he said, “Hurry up, men, because you have been down here all day and very near nothing done”; that one of the men took an axe and cut certain of the wires which held the supports of the lumber together; that at this time the plaintiff was “down the track a piece......not more than fifty yards” when “Beamer called him to this car” and said, “Go ahead and get the axe and cut it”; the plaintiff replied, “Do you mean me?” and Beamer said, “We have been here all day and we have not anything done.... .go ahead and cut them quick.” At that time all the supports but two had been severed; the plaintiff took up his axe and cut one of the remaining supports and “had cut one lick in the other” when it gave way and the lumber fell. The accident happened in April, 1907, at which time the plaintiff was 34 years of age; he was an inexperienced colored [554] man who knew nothing about unloading cars, never having done work of that character before, and he was not given any instructions. Under the circumstances we feel that the plaintiff’s cause falls within the rules governing cases where an employer gives orders for the prompt performance of work involving in its execution dangers to the employee, which dangers, while not obvious to the latter, the former knew or ought to have known and by the use of ordinary due care could have avoided; where the negligence consists in hurriedly ordering the employee without notice or instructions into a position of danger; and where the employee having been directed to perform the work quickly can be held to have acted on the judgment of his superior, upon the theory that a “servant is not called upon to set up his own unaided judgment against that of his superiors and may rely upon their advice and still more upon their orders,” and that in such cases he is not “held to the standard of care which should be exacted when there is more time for observation and deliberation.” (See Lee v. Woolsey, 109 Pa. 124, 126; Williams v. Clark, 204 Pa. 416, 418; Dougherty v. Dobson, 214 Pa. 252, 257; Stoiber v. Independent Brewing Co., 230 Pa. 210; Kearns v. Carnegie Steel Co., 230 Pa. 328, 330; Glew v. Pittsburgh Rys. Co., 234 Pa. 238, 243; Mapes v. Pittsburgh Provision & Packing Co., 31 Pa. Superior Ct. 453, 459; Reber v. Alsace Township, 49 Pa. Superior Ct., 465, 469; also 26 Cyc. 1173, 1235, 1245, 1273, and 1338.) We conclude that both the questions of the defendant’s negligence and of the plaintiff’s contributory negligence were for the jury, and we cannot say that the evidence was insufficient to support the findings comprehended by the. verdict in favor of the plaintiff. The credibility of the witnesses was not for the court, but after considering all that may justifiably be said concerning the principal witness for the plaintiff we are not convinced that his testimony should have been excluded; although there was evidence that this witness had suf [555] fered an illness which, may at times have affected his mentality, yet his deposition appears thoughtful, to the point and consistent with other testimony in the case. Nor do we feel that the fall of the lumber can properly be treated as a mere transitory danger incident to the labor which the plaintiff was employed to perform; the place where the plaintiff was working was converted into one of danger by the manner in which he and his fellow workmen were ordered to do the unloading; there is testimony in the case to the effect that the usual and customary way of unloading lumber from cars is by the use of skids, and from which the inference could be drawn that this was known to the defendant’s representative in charge of the work, further, that the method pursued in response to the latter’s orders was inherently dangerous. The appellant assigns numerous excerpts from the charge, but when viewed as a whole it is apparent that no reversible error was committed in submitting the case to the jury; all the assignments are overruled and the judgment is affirmed.