Bannon v. Lutz
Bannon v. Lutz
Opinion of the Court
Opinion by
It is alleged by Bridget M. Bannon, appellee, tiiat on the 22d of February, 1889, her husband, John Bannon, lost his life in the service and through the negligence of Hiram E. Lutz, appellant, who then owned and operated a refinery known as the Delaware Oil Works. It appears that Bannon entered the service of Lutz as assistant stillman, about two months' before his death, and that in the performance of his duties as such he
It seems very clear to us that the evidence of the alleged contributory negligence of Bannon furnished no ground for a peremptory instruction to the jury to find for the defendant. The theory that the explosion was due to his negligence rests on the undisputed showing that after 'its occurrence the front manhead of still No. 2 was on the platform and leaning against the still at one side of the manhole, and that there was a lantern with the glass globe slightly cracked and a light still burning in it at the time, and about twenty-five feet beyond the place where Bannon was found enveloped in flames. ' From these facts it is claimed there is an irresistible inference that after he had removed the manhead he unnecessarily and negligently passed in front of the open manhole with the lantern in his hands and both were thrown by the explosion to the place where they were afterwards found. But it was not for the learned judge of the court below to draw this inference and base a binding instruction -upon it. He went far enough in this direction when in answer to the defendant’s second point he told the jury that it was negligence per se to carry a lantern with a light in it in front of the open manhole, and if Bannon was injured while thus exposing himself the plaintiff could not recover.
It is claimed by the appellant that the instructions in relation to damages were inadequate. It is true that they were brief, but it is equally true that they were not misleading or suggestive of any elements of damage improper for the consideration of the jury. The verdict was reasonable in amount, and we think the appellant has no just cause to complain of it.
The specifications of error are overruled, and the judgment is affirmed.
Reference
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- Master and servant — Negligence—Safe appliances. It is the duty of an employer to furnish his employees reasonably safe appliances with which to do the work assigned to them, and also to know what appliances are suitable and in common and ordinary use for the purpose. In an action to recover damages for death of plaintiff’s husband, it appeared that it was the duty of deceased to remove the manheads from the stills in an oil refinery after the fires were drawn. While in the performance of his duty he was killed by an explosion of gas in one of the stills. Evidence for plaintiff tended to show that it was customary to use steam in the stills after the fires were drawn for the protection of the men in removing the manheads, and that there was in common and ordinary use a contrivance by means of which the Stillman was enabled to remove the manhead without lifting it from its place, or standing immediately in front of it. It appeared that neither this contrivance nor steam was used in defendant’s works. Held, that the evidence was sufficient to support a verdict and judgment for plaintiff. Contributory negligence — Evidence—Inferences from facts. In the above case it appeared that after the accident the manhead was found leaning against the still at one side of the manhole, and that there was a lantern with the glass globe slightly cracked, and a light still burning in it at the time, about twenty-five feet beyond the place where the deceased was found enveloped in flames. From these facts it was claimed as an irresistible inference that after deceased had removed the manhead he negligently passed in front of the open manhole with the lantern in his hands, thereby exploding the gas issuing from the opening. Held, that such an inference could not be drawn by the court, and that the case was for the jury. Risk of employment — Latent dangers — Appliances. An employee is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary use, in case of latent dangers, and in such case he is not chargeable with an assumption of the risks involved in the failure to provide them. Measure of damages — Charge of court. In an action by a widow to recover damages for the death of her husband, the court charged: “ It is simply a question of compensation. What in your judgment, as well as you can ascertain from the evidence furnished you, will compensate her for the loss she has sustained. They have given you the age of this man, thirty-eight years of age. A man such as the testimony says was in active life, working daily, earning from $13.50 to $14.00 a week. You will see what under all the evidence will compensate this lady for the loss she has here sustained, and you will give her a verdict for that amount.” The jury gave a verdict for $3,000. Held, that the charge was not improper.