
    Thorson v. Carnegie Steel Co., Appellant.
    
      Negligence — Master and servant — Contributory negligence— Failure to guard — Act of May %, 1905, P. L. 85%.
    
    In an action by an employee against a steel company to recover damages for injuries sustained through being struck by a moving crane while walking on the crane track near the roof of the building in which plaintiff was working, the ease is for the jury where there is evidence to show that it was necessary for the plaintiff to be on the crane girder or track at the time he was injured; that before he started he looked down the track and saw that the crane was not in motion and that no one was in the cage; that he was struck by the crane after walking ten or twelve feet on the track; that the general noise of the mill prevented plaintiff’s hearing the noise made by the crane as it approached him from the rear; that employees of the defendant company at times walked over the crane track; that it was the duty of the foreman in charge to give notice to the crane-man that the appellee would in all probability be on the crane girder or track, and that there should be a lookout for him; that the foreman fáiled to give such notice, and that the appellee had not been instructed as to the crane call whistles and the other signals used in the mill; and that although there were safety devices in use on cranes identical in construction with the one which ran over the plaintiff, there were none on it.
    Argued October 15, 1912.
    Appeal, No. 193, Oct. T., 1912, by defendant, from judgment of C. P. Lawrence Co., March T., 1911, No. 87, on verdict for plaintiff in case of John B. Thor son v. Carnegie Steel Co.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Porter, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The accident occurred on March 8, 1909.
    The court charged in part as follows:
    “This Act of 1905, provides that whenever practicable the machinery shall be safeguarded with safety devices. Prior to the passage of this act when a person went into a dangerous place to work he was held to assume the risk of his employment in that place. But if the company has not provided safety devices for his protection then he cannot be charged with assuming the risk of his employment.” (8)
    Plaintiff offered the following point:
    “3. If the jury believe that it was practicable for the defendant company to have provided and equipped its traveling crane and appliances in the bar mill with clamps, safety guards, gongs, or warning bells then the failure to do so would be in violation of the provisions of Section 2 of the Act of Assembly May 2, 1905, P. L. 352, and would constitute negligence on the part of the defendant, against which said negligence the defendant cannot set up the assumption of the risk by the plaintiff.
    “Answer: Affirmed.” (9)
    Verdict and judgment for plaintiff for $3,681.54. Defendant appealed.
    
      
      Errors assigned were, inter alia, (8, 9) instructions of the court as above, quoting them.
    
      J. Norman Martin> for appellant,
    cited: Wilson v. R. R. Co., 222 Pa. 341; Byers v. Coal Co., 230 Pa. 10; Zuraw v. Hammermill Paper Co., 232 Pa. 544; Fitzgerald v. Paper Company, 155 Mass. 155 (29 N. E. Repr. 464); Diehl v. Iron Co., 140 Pa. 487; Kennedy v. R. R. Co., 1 Mona. (Pa.) 271; Nattress v. R. R. Co., 150 Pa. 527; Hurley v. Lukens Iron & Steel Co., 186 Pa. 187; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Del. L. & W. R. R. Co. v. Cadow, 120 Pa. 559; Pitts. & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Wilkinson v. Mfg. Co., 198 Pa. 634.
    
      A. W. Gardner, with him Chas. E. Mehard, for appellee,
    cited: Jones v. American Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514; Fegley ,v. Lycoming Rubber Co., 231 Pa. 446; Solt v. Williams-port Radiator Co., 231 Pa. 585; Bollinger v. Crystal Sand Co., 232 Pa. 636; Amiano v. Jones & Laughlin Steel Co., 233 Pa. 523.
    January 6, 1913:
   Opinion by

Mr. Justice Brown,

The appellee, an employee of the Carnegie Steel Company, while walking on a crane track near the roof of the building in which he was working, was struck by a moving crane and sustained the injuries for which compensation is claimed in this action. While the jury might fairly have returned a verdict in favor of the defendant, neither the question of its negligence, nor that of the contributory negligence of the plaintiff, could, under all the evidence, have been taken from them. Testimony was properly admitted to show that, in performing the duty assigned to him, it was necessary for the appellee to be on the crane girder or track at the time he was injured. Shortly before, he had taken off a top sheet of an iron partition near the roof of the building and was carrying it along tbe crane track to leave it in some safe place where it would not fall on any one below. He testified that, before be started, be looked down tbe track and saw that tbe crane was not in motion and that no one was in tbe cage; and that after be bad walked ten or twelve feet on tbe track, tbe crane, moving in tbe direction in wbicb be was going, ran into and injured him. Tbe general noise of the mill prevented bis bearing tbe noise made by it as it approached him from the rear. From all tbe testimony, tbe jury were justified in finding that employees of tbe defendant company at times walked over tbe crane track; that it was tbe duty of tbe foreman under whom tbe appellee worked to have given notice to tbe crane-man that he would in all probability be on tbe crane girder or track, and that there should be a lookout for him; that tbe foreman failed to give such notice, and that the appellee bad not been instructed as to tbe crane call whistles and tbe other signals used in tbe mill. Though there were safety devices in use on cranes identical in construction with tbe one wbicb ran over tbe appellee, there were none upon it, and this went to tbe question of tbe appellant’s negligence, as tbe learned trial judge correctly held in instructing tbe jury in those portions of his charge wbicb are quoted in tbe eighth and ninth assignments of error. In submitting tbe question of tbe defendant’s negligence, and that of tbe plaintiff’s contributory negligence, no error is to be found in tbe charge or in tbe answers to tbe points, and tbe assignments, from tbe fourth to tbe sixteenth inclusive, are overruled.

No reversible error is set forth in tbe first assignment. The motion to strike out tbe testimony of Waldron was overruled, tbe court directing that it should stand for tbe time being. He subsequently came into court and asked to correct his testimony, and, having been permitted to do so, stated that be was mistaken in having testified as to the length of time tbe safety appliances bad been on tbe cranes in tbe Sbenango mill. There was no renewal of tbe motion to strike out bis former testimony, nor was a request made that tbe jury be directed to disregard it. Sanquist’s testimony — tbe admission of wbicb is complained of by tbe second assignment — was confined to appliances in use in 1909, and wbat be said as to tbe Ohio plant was stricken out, on motion of counsel for appellant, as soon as it was discovered that be bad spoken without knowledge. Tbe question put to Davenport — tbe disallowance of wbicb is compiained of by tbe third assignment — was not relevant at tbe time it was asked, and tbe trial judge committed no error in ruling it out as not proper cross-examination.

Tbe sixteen assignments are overruled and tbe judgment is affirmed.  