Van Duzer v. Commonwealth Telephone Co.

Supreme Court of Pennsylvania

Van Duzer v. Commonwealth Telephone Co.

92 A. 79, 246 Pa. 148, 1914 Pa. LEXIS 485

CourtSupreme Court of Pennsylvania

DecidedJuly 1, 1914

DocketAppeal, No. 290

StatusPublished

This text of 92 A. 79 (Van Duzer v. Commonwealth Telephone Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Duzer v. Commonwealth Telephone Co., 92 A. 79, 246 Pa. 148, 1914 Pa. LEXIS 485 (Pa. 1914).

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Opinion

Opinion by

Mr. Justice Potter,

The plaintiff here sought to recover damages for personal injuries alleged to have resulted from the negligence of the defendant company. The case has been tried twice. The first trial resulted in a judgment of compulsory nonsuit, which the court refused to take off. Upon appeal to this court (VanDuzer v. Telephone Co., 236 Pa. 538) the judgment was reversed with a procedendo. It appears from the evidence at the last trial that plaintiff was employed under the authority of the defendant’s division superintendent to assist in the work of building telephone lines. He was engaged to do general work and probably a little climbing. He objected somewhat to the climbing as he was without experience in that work. He was told that the company would furnish tools and belts, and whatever was needed to work with, and would keep everything in repair. He was furuished by Mr. Irwin, superintendent of the work, with the harness which he used in climbing, and which proved to be defective. A witness, Charles Eichsted, testified that about two weeks before the accident to plaintiff, he called the attention of Irwin, the superin[150]*150tendent, to the defective condition of the harness and the weakness of the snap. A defect in the metal snap caused the accident. The second trial resulted in a verdict for the plaintiff. Rules for a new trial, and for judgment for defendant n. o. v., were discharged by the court below, and judgment was entered upon the verdict. The defendant has appealed. In opening their argument, counsel for appellant say that the only question for determination here, is whether under the pleadings the evidence warranted the submission of the case to the jury. The record as now before us, presents substantially the same evidence as that which appeared in the former appeal, upon which we held that the case was for the jury. The present argument is therefore practically a reargument of a question which has already been decided. This is not permissible: Cowen v. Plate Glass Co., 188 Pa. 542; Creachen v. Carpet Co., 214 Pa. 15. An examination of the testimony at both trials, shows that it was in substance the same, as to the employment of plaintiff, the agreement to furnish him with appliances for climbing, the authority of Irwin the superintendent, the circumstances and cause of the accident, plaintiff’s lack of experience, &c. Several of the witnesses for plaintiff testified on both trials, to the unsafe condition of the harness, particularly of the snap which gave way, or fell open, and thus caused the accident. In the opinion on the former appeal, we said (236 Pa. 540) : “The testimony showed that this weakness in the springs had existed for some time, but no notice of any such condition was given to the plaintiff, when he was asked by the foreman to make use of the harness. Yet his safety evidently depended upon the integrity of the appliance in question.” It appears from the record at the last trial, that plaintiff testified that Irwin, who was in immediate charge of the work, gave him the harness and helped him to put it on, and that he said, “they are perfectly safe, and you cannot fall in them, and you can do this work as well as anybody.” Plaintiff further testi[151]*151fied that lie had never had any experience with snaps such as were used in the belt attached to the climbing harness, which was given to him to use.

We find nothing in the evidence in this record, to change our conclusion, reached in the former appeal, that the questions 6f the negligence of the defendant, and the contributory negligence of the plaintiff, were not properly to be disposed of by the court as questions of law, but were for the consideration of the jury, under proper instructions. No complaint is made of the manner in which these questions were submitted. The only contention here is that the trial judge should have taken these questions from the jury, and should have given binding instructions in favor of the defendant. This would have been in plain disregard of the decision of this court in this case upon the former appeal.

The assignments of error are overruled, and the judgment is affirmed.

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Opinion by

Mr. Justice Potter,

The plaintiff here sought to recover damages for personal injuries alleged to have resulted from the negligence of the defendant company. The case has been tried twice. The first trial resulted in a judgment of compulsory nonsuit, which the court refused to take off. Upon appeal to this court (VanDuzer v. Telephone Co., 236 Pa. 538) the judgment was reversed with a procedendo. It appears from the evidence at the last trial that plaintiff was employed under the authority of the defendant’s division superintendent to assist in the work of building telephone lines. He was engaged to do general work and probably a little climbing. He objected somewhat to the climbing as he was without experience in that work. He was told that the company would furnish tools and belts, and whatever was needed to work with, and would keep everything in repair. He was furuished by Mr. Irwin, superintendent of the work, with the harness which he used in climbing, and which proved to be defective. A witness, Charles Eichsted, testified that about two weeks before the accident to plaintiff, he called the attention of Irwin, the superin[150]*150tendent, to the defective condition of the harness and the weakness of the snap. A defect in the metal snap caused the accident. The second trial resulted in a verdict for the plaintiff. Rules for a new trial, and for judgment for defendant n. o. v., were discharged by the court below, and judgment was entered upon the verdict. The defendant has appealed. In opening their argument, counsel for appellant say that the only question for determination here, is whether under the pleadings the evidence warranted the submission of the case to the jury. The record as now before us, presents substantially the same evidence as that which appeared in the former appeal, upon which we held that the case was for the jury. The present argument is therefore practically a reargument of a question which has already been decided. This is not permissible: Cowen v. Plate Glass Co., 188 Pa. 542; Creachen v. Carpet Co., 214 Pa. 15. An examination of the testimony at both trials, shows that it was in substance the same, as to the employment of plaintiff, the agreement to furnish him with appliances for climbing, the authority of Irwin the superintendent, the circumstances and cause of the accident, plaintiff’s lack of experience, &c. Several of the witnesses for plaintiff testified on both trials, to the unsafe condition of the harness, particularly of the snap which gave way, or fell open, and thus caused the accident. In the opinion on the former appeal, we said (236 Pa. 540) : “The testimony showed that this weakness in the springs had existed for some time, but no notice of any such condition was given to the plaintiff, when he was asked by the foreman to make use of the harness. Yet his safety evidently depended upon the integrity of the appliance in question.” It appears from the record at the last trial, that plaintiff testified that Irwin, who was in immediate charge of the work, gave him the harness and helped him to put it on, and that he said, “they are perfectly safe, and you cannot fall in them, and you can do this work as well as anybody.” Plaintiff further testi[151]*151fied that lie had never had any experience with snaps such as were used in the belt attached to the climbing harness, which was given to him to use.

We find nothing in the evidence in this record, to change our conclusion, reached in the former appeal, that the questions 6f the negligence of the defendant, and the contributory negligence of the plaintiff, were not properly to be disposed of by the court as questions of law, but were for the consideration of the jury, under proper instructions. No complaint is made of the manner in which these questions were submitted. The only contention here is that the trial judge should have taken these questions from the jury, and should have given binding instructions in favor of the defendant. This would have been in plain disregard of the decision of this court in this case upon the former appeal.

The assignments of error are overruled, and the judgment is affirmed.

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92 A. 79, 246 Pa. 148, 1914 Pa. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-duzer-v-commonwealth-telephone-co-pa-1914.

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