Harner v. F. H. White Co.

Opinion by Mr. Justice Elkin, Appellant contends that a verdict in its favor should [405] have been directed at the trial, and this not having been done as requested, a verdict non obstante veredicto upon the whole record should have been entered. The question for decision here is whether under the facts the case was for the jury or for the court. The learned trial judge submitted the case to the jury in a careful and painstaking' charge in which the legal rights of the parties were clearly defined. If the case was for the jury at all, there can be no' just criticism of the manner of its submission. Learned counsel for appellant most strongly rely upon Devine v. Simons, 235 Pa. 336, to support the contention made here. It must be conceded that these cases have many points of similarity, and for this reason we have examined the Devine case with more than ordinary care to determine whether what was decided in that case should be deemed controlling here. Our conclusion is adverse to the position so strongly and ably argued by counsel for appellant. In the Devine case the negligence charged did not include failure to properly guard the shaft which caused the injury, while in the case at bar this was the negligence mainly relied on to sustain a recovery. In the Devine case the shaft was guarded not only by the top of the table, but by a foot rest seven inches wide running the entire length of the table and serving as a protection to those employees who had occasion to stand in front of the same. As we viewed that case the top of the table and the foot rest at the side afforded as much protection from coming in contact with the shaft as could be provided. There could be no danger to an employee unless he deliberately got under the table by crawling through the small open space above or below the foot rest and thus by his own deliberate act put himself in a place of open and obvious danger. In the present case there was no foot rest at the side of the table and there was no protection against coming in contact with the revolving shaft which was concealed from the view of the operator by the top of the table. Under these and other circumstances which dif [406] ferentiáte the cases it was for the jury to say whether the shaft was properly guarded as the Act of 1905 requires. But it is also argued that appellee should have been declared guilty of contributory negligence as a matter of law, and the Devine case is relied on as conclusive authority on this question. We can not so regard that case. What has already been said in discussing the negligence of defendant company applies generally to the question of contributory negligence. In the Devine case the injured employee had no duty to perform which required her to crawl under the table and over the foot rest, while in the present case appellee was acting within the scope of her employment when she stooped to pick up the strap which had fallen, It was clearly her duty to pick up the strap and she had a right to rely on the assumption that her employer had provided a safe place to work and that the machinery was properly guarded as the law requires. No doubt she acted quickly and finding a clear open space under the table thought it safe to reach for the strap. It is not the case of getting down and crawling over an obstruction seven inches.wide, which acted as a guard to the machinery back of it, and thus deliberately going into a place of open danger. Then, again, in the present case there is some doubt as to whether the light was sufficient to expose the dangers under the table. For these and other reasons not necessary to discuss in detail we have concluded that the present case was for the jury. We find no reversible error in this record. Judgment affirmed.