O'Dowd v. Burnham

Opinion by Orlady, J., The plaintiff was employed by the defendants, who are locomotive manufacturers and operate a large plant composed of many separate buildings. One Connery was a foreman in the boiler shop in which the plaintiff worked, and was in charge of a gang of three or four men. Connery ordered the plaintiff to transfer, by means of a traveling crane, certain material from where it had been delivered to where it was to be used. The material consisted of castings of different sizes and weights and to effect its transfer the pieces were made fast to the crane by slings or hooks which consisted of short chains with either a hook or a bolt and nut at one end to be inserted in the holes in the pieces to be moved, and at the other end a ring which was placed on the hook of the chain depending from the crane. There were a number of these slings of different sizes and design, for use in moving pieces of different weight. The plaintiff directed the removal of the pieces from the wagons, fastened them to the slings, and gave directions to the man who operated the crane where they were to be taken. Connery was present at the time the plaintiff was unloading the pieces from the wagons when one of the hooks in use broke. The accident is described by the plaintiff as follows; “ I took [467] the chain and the hook — the broken one — in my hand and followed him (Connery) to his desk and asked him if he would send a man to get the hook fixed and he said, ‘No; let her go until Monday, go on with your work.’ I thought it was all right then, and I went back to my work, and I had to work until twelve o’clock that night, and between eight and nine o’clock I was hoisting another part of the boiler on this single hook, and it broke and fell and catched me on the foot and took three of my toes off.” The plaintiff also testified that, some time prior to this accident, material, when being moved, was attached to the crane by putting a bolt through a hole in the piece to be moved and fastening a nut on the bolt on the under side, and that “ Mr, Connery said it was -too slow and told me to get hooks — that it was smarter work — quicker work — and I told him that I thought those books were -not strong enough, and he asked me who was boss, me or him, and I said, you are boss and he said go and do what I tell you.” The hooks had been in use for several weeks before the accident occurred. As to the plaintiff’s control over the appliances he said: “ Q. Do all the slings have two hooks, .or do some of them have only one ? A. There was only one that had two hooks. Q. How many were there that had one hook? A- Three more. Q. Were they of different weight, or were they of about the same strength ? A. The one that hurt me was about the strongest there was. Q. You chose each one, I suppose? A. Yes, sir. Q. And you could get any one of the four you wanted at any time ? A. Yes ; if I wanted them, if I thought they were strong enough. Q, You said something about using chains with bolts ? A. Yes, sir. Q.- Some of those were there too ? A. They were there too, two chains attached to the same ring with bolts and nuts. Q. How many of them were there ? A. There were four. Q. And you used those when you thought the thing was too heavy? A. I wouldn’t get permission to use them. Q. Who decided that ? A. Mr, Connery.” The negligence of the defendants, as urged in the plaintiff’s statement, was that they “ carelessly, negligently, and knowingly allowed a defective, dangerous, and unsafe hook to be attached to a chain connected with said crane, that said hook broke and dropped the piece of iron then being carried.” If is [468] not claimed either in the pleadings or in the evidence that the foreman, Connery, was incompetent, or that the defendants had any reason to believe him to be incompetent. Connery was not present at the time the accident happened, and did not direct the use of the particular chain or sling which caused the accident; and it does not appear that the hook broke on account of any Observable defect, nor that the hook which broke during the afternoon had anything to do with this accident. O’Dowd had the several chains before him from which to select one which would serve the purpose of lifting the casting. He was not bound to adopt or use any special one; and if, in his judgment, the hook was not strong enough to lift this throat piece, weighing' 800 or 1,000 pounds — the heaviest he had ever seen — he was bound to take notice of an obvious danger: Devlin v. Phoenix Iron Company, 182 Pa. 109. There was nothing in the direction given by Connery in regard to using the hooks to prevent the use of the leg chain with holt and nut for this especially heavy piece. The plaintiff was bound to exercise his own judgment in the selection of the tools at his command. If through a mistake in judgment the hook or chain selected by the plaintiff for use was unsuited for the purpose for which it was wanted and the accident was due to this, he cannot recover. The duty of the employee is to use his senses in all that relates to his employment, to exercise attention and care in the selection of material from the mass provided for general use, and to' provide with reasonable diligence for the safety of himself and his coemployees in his management of his share of the work to be done: Prescott v. Ball Engine Company, 176 Pa. 459. ’ The measure of liability is clearly defined in Ross v. Walker, 189 Pa. 42: “ The master does not insure his employees against each other, nor is he bound tó supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass-.provided-for them; they must use their own judgment as to the manner of handling it. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each or all of his employees. The fact that one employee is more skillful than another, or has had greater experience, and is so deferred to by Others, does not change his relation to his employer or to his [469] fellows. Nor does a difference in rank or grade of service change the rule. When the character of the business requires it, the master is as much bound to provide his workman with a reasonably competent foreman as to provide them with tools, but in either case his liability ceases when he has made a suitable selection. He is neither bound to provide the best tools and machinery, nor the highest grade of skill in his foreman, but he is bound to provide that which is reasonably safe and sufficient in both cases, and having done so he has discharged his duty:” Toohey v. Equitable Gas Co., 179 Pa. 437; Devlin v. Phœnix Iron Co., 182 Pa. 109; Ricks v. Flynn, 196 Pa. 263; see also Augerstein v. Jones, 139 Pa. 183. Where an accident results from an unforeseen cause not discoverable in advance of its occurrence, with no visible defect in any part of the machinery, and no knowledge of any defect on the part of the men who were constantly using the machinery, or of the employer, the accident is one of the ordinary risks of the employment which the servant takes upon himself: Bradbury v. Kingston Coal Co., 157 Pa. 231. Some specific negligence on the part of the master must he shown: Wojciechowski v. Spreckel’s Sugar Refining Co., 177 Pa. 57. If the accident was due to a concealed or latent defect in the hook, such as reasonable care would not detect or provide against, the employer would not be liable: Toohey v. Equitable Gas Company, 179 Pa. 437. It-is not alleged that the tools furnished were old and worn, or had not been inspected, nor that they were in an unsafe condition, as in Honifius v. Chambersburg Engineering Company, 196 Pa. 47; Newton v. Vulcan Iron Works, 199 Pa. 646, and Dyer v. Pittsburg Bridge Co., 198 Pa. 182, the sole objection by the plaintiff being that “ the hooks were not strong enough.” They had been in use but three or four weeks, and whether the hook was not strong enough to safely lift the particular casting was for the plaintiff to decide, as Connery was not present. Whenever an employee discovers anything affecting the safety of the machinery or tool or appliance, which he is obliged to use, and his judgment based on his experience gives notice of imminent danger in using it with skill and care so that it would be reckless to use it, the employer is not liable. The plaintiff was not an ordinary laborer but the person in full charge of all the tools and [470] appliances With which he was to do particular' work. The application of the rule might bé different had one of the meh under him been injured, as in Ricks v. Flynn, 196 Pa. 263, but he’ had the right of selection from a number of tools. If another hook' had been used the accident might not have happened : if so, surely the employer should hot be made to pay for plaintiff’s error of judgment. Absolute safety is unattainable, and employers are not insurers. They are .liable for the consequences, not of danger but of negligence: Leonard v. Herrmann, 195 Pa. 222; Purdy v. Westingliouse Electric & Mfg. Co., 197 Pa. 257. It was clearly proven that Connery was several removes in rank of employment from the defendants as principals, his immediate superior being John Morgan, who iii turn was subject to1 the direction of others. Connery’s duty in the shop ended at- six; o’clock aiid thé accident did not occur until two hours later, but the night foreman has not been connected with the accident in any manner. Assuming that Connery Was the foreman of that shop, the accident was caused by either the plaintiff’s- mistake in judgment as to the strength of the hook, for which the employer is not responsible, or it was due to the direction Of Connery to use the hooks instead of the bolt and nnf attachments. In the latter view, under authority of McCinley v. Levering, 152 Pa. 366, and the cases therein cited, and Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617, Duncan v. A. & P. Roberts Co., 194 Pa. 563, Connery was a fellow-workman with the plaintiff and there cannot be a recovery. The judgment is reversed.