Matlack v. Plumb

Opinion bt

Mr. Justice Elkin,

At the trial a judgment of nonsuit was entered when the plaintiff rested his case. The negligence charged was failure to properly guard an emery wheel within the meaning of the Act of May 2,1905, P. L. 352. It is conceded on all sides that the requirements of this act cannot be disregarded by an employer without making himself liable in damages to an employee for injuries resulting from failure to properly guard machinery as the statute requires. The . question here is whether, a prima facia case was made out under the act. In his case in chief the plaintiff established the fact that the emery wheel was guarded and the testimony admitted at the trial did not show that the guard provided was not a proper guard. On this exact question there was no evidence at all. The plaintiff did offer to prove by witnesses with more or less expert knowledge that the guard in question was not the same kind of a guard as that used in some other establishments, but the trial judge ruled that the offers were incompetent and refused to admit the testimony. Under the facts we think this testimony was properly excluded. It was not of the character to meet the question involved under the pleadings.

The case stands with the fact clearly established that the emery wheel had a guard, and no evidence to show that, it was not a proper guard. Under these circumstances should the case have been submitted to the jury? The learned court below answered this question in the negative, and after consideration we have concluded that this was the proper view of the case under the facts. The present case differs from all other cases in which the application of the Act of 1905 was involved, because in most of those cases the machinery was not guarded at all, and in those cases in which a guard had been provided there was evidence that the guard relied on was not a proper one. When the facts show that no guard was provided for dangerous machinery, or when a guard is provided but there is evidence to show that.it was not a proper guard, the case is clearly for the jury, and we have said so in a number of recent decisions. In no case, however, has it been decided, when the plaintiff proves the machinery to have been guarded, and offers no evidence to show that the guard thus provided was not a proper one, the ease must go to the jury. In every case of this kind the burden is on the plaintiff to prove the negligence charged, and if that negligence be failure to properly guard dangerous machinery, it is not sufficient to prove that the machinery was guarded and then rest without offering any competent testimony to show that the guard provided was not a proper guard for the purpose intended.

Under these circumstances we think the learned court below properly disposed of the case and that nothing contained in the present record warrants a reversal of the judgment.

Judgment affirmed.