Bemisch v. Roberts

Citations

• 143 Pa. 1
• 21 A. 998
• 1891 Pa. LEXIS 900

Syllabus

<p>[To be reported.]</p> <p>(a) While the plaintiff, with other workmen employed at an iron mill, was pushing a vehicle known as a “ buggy,” loaded with bars of iron, a part of the load fell upon and injured him. The buggy was so constructed that by inserting in certain holes iron pins or rods, provided for the purpose, the accident could have been prevented.</p> <p>(b) Such pins wore not used in this instance. Testimony for the plaintiff tended to show that their use was prevented by the condition of the holes, being so worn and enlarged that they would not hold the pins; that the plaintiff had not assisted in loading the buggy, and did not know that the pins wore not in place. This he could have ascertained by a glance.</p> <p>(c) There was no evidence that the employer knew of the defect in the buggy. There were more than a hundred buggies at the mill from which workmen made their own selection when they had occasion to load one. There was some evidence that the load upon this particular buggy was improperly piled, and that this contributed to the accident:</p> <p>1. The absence of the pins, the real cause of the iron falling off the buggy, being manifest and conspicuous, the plaintiff was bound to notice it, and was chargeable with negligence in failing to do so; wherefore. lie was not entitled to recover damages for Ms injury, in an action against Ms employer: Phila. etc. R. Co. v. Huber, 128 Pa. 63, distinguished.</p> <p>2. Moreover, for the negligence of the plaintiff’s fellow-workmen in voluntarily selecting and loading a buggy that was defective, when they were entirely at liberty to select one that was in good condition, the master was not responsible; and therefore, the plaintiff was not entitled to recover in any aspect of the case.</p>