Esher v. Mineral Railroad & Mining Co.

Citations

• 28 Pa. Super. 387
• 1905 Pa. Super. LEXIS 208

Syllabus

<p>Negligence — Evidence—Inference from facts — Degree of care.</p> <p>Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care and the degree varies according to the' circumstances, the question cannot in the nature of the case be considered by the court; it must be submitted to the jury.</p> <p>It is only where the facts and inferences therefrom are. undisputed and where the precise measure of duty is determinate that the question is for the court.</p> <p>Negligence — Master and servant — Assumption of risk — Instruments and - appliances.</p> <p>An employee will be deemed to have assumed the risk naturally and rea-' sonably incident to his employment, and will be presumed to have notice of the risks which are or should be obvious to one of his understanding and experience, but the employer must maintain instruments and appliances reasonably suitable to the prosecution of his business and which enable his employees to perform their duties with relative safety without exposure to risks which are not naturally or reasonably incident to the employment.</p> <p>The employee has the right to assume that the employer has provided reasonably safe machinery and appliances for his use, and he does not assume the risk growing out of their defective character unless he has been fully advised that they are defective. ■</p> <p>In an action against a mining company to recover damages for the death of a boy kicked by a mule, the case is for the jury and a verdict and judgment for plaintiff will be sustained where the evidence is conflicting as to whether the boy at the time of the accident was performing an act outside of the scope of his employment at the request of a fellow servant, whose negligence was alleged to have caused the accident, and as to whether the vicious character of the mule was known to the deceased and notwithstanding such knowledge he remained in the