
    Golwitzer v. Pennsylvania Railroad Co.
    The plaintiff, a German, employed as a car washer by the defendant railroad company, was summoned to help load car wheels on flat cars. The wheels, weighing some 1500 pounds, were run up by means of a skid, the lower end of which rested upon the rails and the upper end upon the car. The two timbers of the skid were held together by two iron bars, one at the upper end and the other at the lower end, the latter about a foot from the ground. Four men were used to shove the wheels to and up the skid, two on the outside of the track and two on the inside, the plaintiff on this occasion being between the rails. Two men were stationed on the car who caught the axle of the wheels when within reach and aided in pulling them into the car. After loading four or five pairs of wheels, a pair part way up turned and rolled back. An alarm was given in English, which the plaintiff did not understand; his companion stooped down and the wheels passed over him in safety; but the plaintiff started to run, stumbled on the iron rod of the skids, fell and was run over by the wheels and injured. The plaintiff had, once before, helped to load wheels on a car. The cross bar was afterward removed and shoes or clamps substituted to hold the timbers to the rails. The court below, in a suit for damages by the plaintiff, for injuries caused by the alleged negligence of the defendant, entered a compulsory non-suit, upon the above evidence, on the ground that the plaintiff had assumed the risk of his employment. Held, that the judgment should be affirmed.
    Nov. 5, 1888.
    Error, No. 206, Oct. T. 1888, to C. P. Allegheny Oo., to review a judgment of compulsory non-suit in an action of trespass on the case for personal injuries, at July T. 1886, No. 46. Sterrett, J., absent.
    The following testimony was printed in the paper book of the plaintiff in error, as given on the trial before Magee, J.:
    A. Golwitzer, plaintiff, sworn. — In April, 1884, was in defendant’s employ at Twenty-eighth street as a greaser, for a shoi’t time. "Was again employed in April, 1885, as a car washer. On June 17, 1885, at 10 a. m., was washing cars in Union Station yard, when Yard Boss Heass told me to help the repair men load wheels on the gondolas. The wheels were run on the rails about 30 feet to a skid or incline about seven feet long and up it to the gondola. The pair of wheels with axle weigh 1,500 pounds. Four of us pushed the wheels to the skid and up it, and two men in the car caught the axle and pulled it in. I was placed between the rails, beside one Austin, a small, active, young man, while outside the rails were two repair men, one on each side. I was then 45 years of age and weighed 165 pounds. Now weigh but 145. Am German and understand not English. The timbers of the skid rest at the lower end on the rails, and are connected by an iron cross bar about a foot or foot and a half from the ground. When running the wheels forward I had to jump over that cross bar and step over it on returning. "We ran up four or five pairs of wheels, but had not strength to get the next pair up, and they turned on us. An alarm was given in English, which I did not understand, and all of us tried to get away. In running back my foot caught on the iron cross bar. I fell on my breast across one rail and one wheel passed over my back and neck. That cross bar. was the sole cause of my fall. I could easily have got safely away had it not tripped me. I did not know that the wheels were liable to turn back. I did the best I could to escape injury. That cross bar was afterward removed from the skid. I toid Mr. Heass it was very dangerous and others would get hurt by it.
    Cross-examined. — Have been in United States five years. Worked first as laborer in Carnegie’s mill. Worked, as before •stated, as greaser and car washer for Pennsylvania Railroad Co. I -assisted once, five weeks before I was hurt, in loading wheels on one car. Never saw them loaded except on those two occasions when I helped. Ho not know whether Austin ran or dodged down when the wheels turned on us. Quick as lightning all was over. I know those cross bars are removed from the skids since. I had never seen wheels turn on the men before, and did not know the cross bar was ■dangerous.
    Fred Brett, sworn. — Was in employ, as car cleaner of Pennsylvania Railroad Co., two years, till May last. Have seen the ar’rangement for running wheels up and on the gondola cars. The cross bar connecting the sides of the skid is 8 or 10 inches above the rail. The ground is sometimes higher or lower. Never saw the wheels start back on the men. If they did there would be danger to the men between the rails of the track from the cross bar. It would likely catch the feet and throw them down. The timbers might be clamped to the rail to do without the cross bar.
    Cross-examined. — -I have seen the laborers and car washers assist in loading wheels. Have assisted myself. Never got extra pay for it. Never saw old men loading wheels that were not fit for that work.
    J. C. Wunderlich, sworn. — Am machinist. Was in employ of Pennsylvania Railroad Co. in general work when Golwitzer was hurt and remember the circumstance. Had assisted twice in loading wheels on cars. The way the cross bar was fixed on the skids I thought it dangerous to one between the rails. I never helped to load wheels after Golwitzer was hurt.
    Cross-examined. — I did anything I was ordered to do. Never fell over a cross bar or saw any one so fall.
    Geo. Thurm, sworn. — Am in employ of Pennsylvania Railroad Co. and was, as a car washer, when Golwitzer was hurt. Have helped to load car wheels. We had to be careful about that cross bar on the skid, so as not to fall over it. No wheels ever turned on me. The cross bar is not now used. The repair men and bosses made an improvement ourselves — putting a steel shoe or clamp on the skid timber, holding it to the rail, dispensing with the cross bar, and the skids are perfectly safe now.
    Jas. Austin, sworn. — Am a brakeman. Was beside Golwitzer loading wheels when a pair turned on us and caused his hurt. The alarm given, I squatted at once to the ground below the axle, and saw Golwitzer start back on the run, when his right foot caught on the cross bar of the skid, by which he was thrown across one of the rails and a wheel passed over him. He could have escaped without hurt had it not been for the cross bar. It was a dangerous contrivance.
    
      At the close of the evidence, on motion of defendant’s counsel,, the court entered a compulsory non-suit. A motion to take off the-non-suit was subsequently discharged by the court, in the following opinion, by Magee, J.:
    “ The plaintiff on April 15, 1886, brought an action of trespass on the case against the defendant company to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant.
    “ On the trial, the evidence produced by the plaintiff showed that on June 17, 1885, he was an employee of the defendant as a car washer or laborer in defendant’s yard at the wages of $1.30 per day. That, by direction of his ‘ boss,’ he was told to assist in loading-car wheels on one of the company’s cars. That the loading was done-by means of skids, the one end of which rested qn the car and the other on the rails of the track. In order to keep the skids from spreading at the track, they were held together by an iron rod extending from one skid to the other, located one foot from the ground. Four men were employed, in the work of putting the wheels on the car, which was accomplished by the men pushing the wheels along the railroad track rapidly and with sufficient force and momentum to pass up the skids and on to the car. The four men engaged in the work were placed, two of them between the wheels- and two of them outside the wheels. Two men stood on the car and grappled the wheels when within reach and assisted iu the work-The plaintiff was one of the men between the wheels. On the day of the accident, and before the injury, a number of the wheels had been put on tlie car. In the course of the work one of the pairs of wheels when almost at the top of the skids, turned and rolled back. The men on the car called to the men at the wheels to look out, and,, thereupon, one of the men between the wheels stooped down and the wheels passed over him in safety. The plaintiff held his hand on the axle and, looking back, started to run, and, in passing back, stumbled on the iron rod of the skids and fell upon the railroad track, and was run over by the wheels and seriously injured.
    “ It was in evidence that the plaintiff had been engaged in the same kind of work with the same skids a short time before. The mode of loading car wheels and the appliances used on this occasion were such as had been in use for a long time and continued in use for a year afterward, when an iron shoe was introduced to hold the skids on the track, and the iron rod was removed to the end of the skids which rested on the car.
    “ The plaintiff is an intelligent German, and had been before employed where machinery was in use. He did not understand the English language, or the words of warning spoken in English by the men on the car.
    “No break or disarrangement occurred in the skids and no accident or injury had happened heretofore in their use. The plaintiff made no objection to the work, or complaint of danger in the appliances in use.
    
      “ On this state of facts, the defendant moved the court for a compulsory non-suit, and the motion was granted. The facts presented did not, in our opinion, establish a case of negligence on the part of the defendant.
    
      “ The law is well settled :
    “ 1st. An employer is not bound to indemnify an employee for losses in consequence of the ordinary risks of the business, nor by the negligence of a co-employee. Caldwell v. Brown, 53 Pa. 453. •
    “ 2d. An employee is bound to know Iris own machinery. Ryan v. Cumberland Valley R. R. Co., 23 Pa. 384.
    “ 3d. Where an injury happens to a servant while in the actual use of an instrument, engine or machine, in the course of his employment, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, the servant cannot recover, there being no evidence of any personal negligence on the master’s part conducing to the injury. Nor does it vary the case that the master lias in use in his works an engine or machine less safe than some other which is in general use, or that there was another and safer method of doing the business which had been discarded by his orders. Dynen v. Leach, 5 Am. Law Reg. O. S. 745; Schall v. Cole, 107 Pa. 1.
    “ 4th. When an employee, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain. Brossman v. Lehigh Valley R. R., 113 Pa. 498; Rummell v. Dilworth, Porter & Co., 111 Pa. 349.
    “ 5th. A master is bound to exercise reasonable care to adopt and maintain suitable instruments and means to carry on the business in which his servants are employed, but is not required to furnish the newest or best form of instruments. P. W. & B. R. R. v. Keenan, 103 Pa. 124.
    “ 6th. Where the injury does not result from any defect of the appliances furnished, the employer will not be liable because the injury might have been prevented by the use of some different device. North Central R. R. v. Husson, 101 Pa. 1.
    “ 7th. An employer is not bound to furnish for his workmen the safest machinery, nor provide the best methods for its operation. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employee, it is all that can be required of the employer. This is the limit of his responsibility and the sum total of his duty. Payne v. Reese, 100 Pa. 306; R. R. v. Sentmeyer, 92 Pa. 276; Schall v. Cole, 107 Pa. 1.
    “ 8th. An employee is assumed to have notice of all patent risks incidental to his employment, or of which he is informed or of which, it is his duty to inform himself; and is assumed to undertake to run such risks. Sykes v. Packer, 99 Pa. 465.
    “ These cases might be supplemented by many others of a like character, from which we are of the opinion that the conclusion is inevitable, as a matter of law, that there can be no recovery had in the present case, on the plaintiff’s own showing.
    
      “ However much we may be disposed to sympathize with the plaintiff in his disabled condition, we are constrained to say, as a. matter of law, that the injuries sustained are the result of an accident, the happening of which is in no way attributable to the negligence of the employer.
    “And now, to-wit, February 16th, 1888, after argument before the court in banc, and on consideration, the motion to take off the compulsory non-suit is refused.”
    
      The assignments of error specified the action of the court, 1, in granting the non-suit; and, 2, in refusing to take it off.
    
      Thos. J. Keenan, with him J. M. Friedman, for plaintiff in error
    If one chooses inexperienced servants, without warning them, to use what a careful employer might know to be dangerous, he is guilty of negligence.
    It is the duty of every employer to exercise reasonable care in providing his employee with safe machinery, tools and appliances adapted to the uses for which they are designed. Mullen v. Phila. & S. Mail S. S. Co., 78 Pa. 25; G. & C. Pass. R. R. Co. v. Bresmen, 97 Pa. 103; Tissue v. B. & O. R. R., 112 Pa. 91.
    “ The plaintiff cannot be supposed to have assumed or accepted in advance a peril which he could not estimate, and the extent of which, from lack of experience, he could not have known.” Rummel v. Dilworth, 111 Pa. 343.
    The question whether the appliances used are such as the law requires to be furnished by an employer for the use of his employees and whether the plaintiff had experience sufficient to warn him of his danger was for the jury. Rummel v. Dilworth, supra; West Chester & Phila. R. R. Co. v. McElwee, 67 Pa. 311; Pa. R. R. Co. v. Peters, 116 Pa. 206.
    
      G. B. Gordon, with him Wm. Scott and John H. Hampton, for defendant in error.
    The evidence printed is not the official notes of the stenographer. It is probably the notes of counsel. The only authentic statement of the facts is that contained in the opinion of the court below. From the notes as printed, however, it appears that plaintiff had been employed before by the railroad, and the skid had been used and was continued to be used until a year after the accident. It was certainly not negligence for the company not to adopt a new device before it was invented. The alleged defect was open and obvious and as well known to plaintiff as to his employer.
    For the law of the case we refer to the opinion of the court below and to the cases of P. & R. R. R. v. Hughes, 119 Pa. 301, and N. Y., L. E. & W. R. R. v. Lyons, 119 Pa. 324.
    
      The case was submitted by counsel in this court on their paper books.
    Jan. 7, 1889.
   Per Curiam,

The reasons given by the learned judge below, for refusing to take off the non-suit, are entirely satisfactory.

Judgment affirmed.  