Glenn v. Kittanning Iron & Steel Mfg. Co.

Opinion by Head, J., The first and second assignments of error complain respectively of the refusal of'the learned trial judge to direct a verdict for the defendant and to enter judgment n. o. v. in its favor. In considering these assignments we must regard as established every fact favorable to the plaintiff that is supported by testimony and every like favorable inference that may be drawn from such facts. With the conflict in the testimony on the subject of the plaintiff’s contributory negligence we have no concern. [165] As we said in Clegg v. Seaboard Steel Casting Co., 34 Pa. Superior Ct. 63: “There was indeed very strong and persuasive testimony from which the jury might well have reached a different conclusion on this question, and the tenor of the general charge and the answer to the defendant’s first point show that the trial court was duly impressed by it. But that court had no right, nor have we any, to usurp functions which, from time immemorial, the law has committed to another tribunal.” The plaintiff was an employee in the mill of the defendant company. The shift on which he worked began operations at six o’clock in the morning, and he was required to report for duty at that time. On a dark frosty and foggy morning in January he entered the millyard at a few minutes before six and stopped at the engine house to warm himself. Prom that point he started in due time to enable him to reach the casting hall, where he was to work, at the required hour. In crossing the yard to reach his destination, he traveled for a part of the way along the top of an eighteen inch wide wall adjoining a pit about six or eight feet deep used in connection with what is called the “pig machine.” There was ordinarily an electric light at the dangerous point which would enable him to see where he was traveling. He not only used that way habitually himself but it was so used by the other workmen. On the morning in question this light was not burning. Steam was escaping from the pig machine, and in the confusion resulting from these causes the plaintiff missed his footing and fell into the pit. His testimony as to these facts is corroborated by that of other witnesses and the verdict of the jury has established it was credible. Under these circumstances the learned trial jud,ge could not, as we view it, have rightly declared, as matter of law, that the plaintiff had been guilty of contributory negligence. He agrees there were other ways by which he could have entered the millyard and proceeded to the casting hall. But he declares they were all dangerous on account of the shifting trains in [166] the yard, and that, in his judgment, the route he adopted was the best one open. Although he is strongly contradicted as to this branch of his case, nevertheless his testimony necessarily carried the question to the jury. The first and second assignments must therefore be dismissed. The third assignment complains of the refusal of the court to charge that the relationship existing between the plaintiff and defendant at the moment of the accident was only that of licensee and landowner and not that of master and servant. We have no doubt of the correctness of the answer of the learned trial judge. In Clegg v. Steel Casting Company, supra, the situation there presented is almost exactly that in the case now before us. In that case we said: — “The same reason that supports the rule requiring the master to keep reasonably safe the place in which his servant actually performs his work, would necessarily extend the rule to the means provided on his own premises, by which the servant obtains access to his working place.” The third assignment is dismissed. The fourth assignment alleges error in the refusal of the court to affirm the following point: “Under all the evidence in the case the plaintiff did not attempt to walk the wall by invitation of the defendant, and there can be no recovery.” It was not at all necessary to the integrity of the plaintiff’s case that there should have been an actual invitation extended by the master to his employees to use the walk on the top of the wall. It was quite sufficient, if the testimony tended to show, as it did, that this way was habitually and constantly used by considerable numbers of the employees, and that this daily use was.under the eye and with the knowledge of the superintendent of the plant. There was no error therefore in the refusal of the court so to .charge and this specification is overruled. The fifth specification again complains that the learned trial judge refused to charge, as matter of law, that the plaintiff was guilty of contributory negligence. We [167] have already observed that the facts upon which this point is predicated were disputed and that the conflict in the testimony necessarily carried that question to the jury. It was important the jury should know whether or not the way traveled by the plaintiff on the morning of his injury was the usual and ordinary way adopted by the men generally. If it was, it is difficult to see how the plaintiff could be convicted of contributory negligence in following the practice thus generally observed by his fellow workmen. As a consequence, it could not have been reversible error for the learned judge to admit the testimony complained of in the sixth assignment. The same testimony from another witness is complained of in the seventh assignment, and the witness delivering that testimony, who was familiar with the various means of access to the millyard, stated that from his own observation he regarded the route traveled by the plaintiff and the other employees as the safest way under all of the circumstances. In like manner the witness, whose testimony is complained of in the eighth assignment, after stating his experience in working in various mills, was permitted to say, over the objection of the defendant, that according to his observation, such excavations were usually guarded and ought to be guarded. Objection is made that the witness was not sufficiently qualified to warrant him in giving an opinion on that subject. The competency of a witness and the extent of the knowledge he possesses, which must determine his competency, are largely matters of discretion for the trial judge. The witness testified that he had been a master mechanic for sixteen years; that he had worked in the mills of the Jones & Laughlin Company; the Wheeling Iron & Steel Company ; the Kittanning Iron & Steel Company, the defendant, and the Furnace Run Machine Shop. He testified, that according to his observation, open pits and excavations of the character of the one in question were usually [168] protected by guard rails. We are not prepared to say that the learned trial judge was guilty of such an abuse of discretion in permitting him to express his opinion as to warrant us in reversing the judgment. If the testimony of the plaintiff, as before stated, was accepted by the jury, he was certainly free from contributory negligence. There was evidence to warrant the jury in finding that the defendant had not complied with its legal duty of exercising care according to the circumstances, and it became a question for the jury, under proper instructions from the court, to determine what was care under the circumstances existing on the morning of the accident. Both of these questions were submitted in a charge, of which no reasonable complaint can be made. We think the case was fairly tried, the verdict was a moderate one, and the judgment should not be disturbed. Judgment affirmed.