On March 30, 1896, defendant moved to dismiss the bill for want of prosecution. January 6, 1896. Replication filed. plea; after answer to the bill and interrogatories, It appeared that on March 16, 1896, plaintiff's and the same held sufficient, to set the cause down solicitor presented a motion to the Court to fix for hearing on bill and answer, to reply, or to a day for a hearing as required by the rules of amend should the answers make amendment necCourt. This motion was not filed at the time. essary; after replication, to serve a subpoena to rejoin, to obtain, when necessary, a commission to examine witnesses, have it executed and reOn December 9, 1896, the Court entered the turned, to have rules to produce witnesses, to pass following decree: publication, to set down the cause for hearing, "And now, December 9, 1896, this cause came and serve a subpoena to hear judgment. The on to be heard upon motion to dismiss the bill of several periods limited for the performance of complaint and was fully argued by counsel and these duties were fixed by general orders, and on thereupon, upon consideration thereof it is or- default by the plaintiff the defendant might move dered, adjudged and decreed that the bill of com- to dismiss the bill for want of prosecution. If, plaint be dismissed for want of prosecution and however, after notice of this motion, the plaintiff that the complainant pay the costs." made good the default or undertook to speed the cause by taking the next step required, or if upon hearing he satisfied the Court that he had used due diligence and was reasonably entitled to furth On December 10, 1896, the Court directed plaintiff's motion of March 16, 1896, to be filed as of that date. Plaintiff appealed from the above decree, as- er time, the motion was dismissed. signing the entering of the same as error. Bassler Boyer, for appellant. With the abolition of most of this cumbrous machinery, and the adoption of rules simplifying C. H. Killinger, (S. P. Light with him), for ap- the practice, the reason for the motion to dismiss pellee. for want of prosecution has largely if not wholly disappeared. The defendant is no longer obliged April 12, 1897. SMITH, J. Though, from the to wait the plaintiff's motion at any stage of the pleadings, the plaintiff's complaint appears well proceedings, but may either take or require the founded, this appeal does not directly involve a plaintiff to take any step necessary to expedite consideration of its merits, and on this point we the cause. The motion to dismiss for want of need only say that it cannot be dismissed on bill prosecution, having been superceded by more efand answer. The only question here is whether fective remedies, has practically become obsolete. the order dismissing the bill for want of prosecu- "By the English practice, the motion to dismiss tion can be sustained. This must depend on the was merely for the purpose of expediting the situation of the cause when the order was made.proceedings of the complainant; and there is no Our equity rules contain no specific provision ground for such an application on the part of the for the dismissal of a bill for want of prosecution. defendant where either party is at liberty to proThe practice on this point must therefore be reg-ceed in the cause": Whitney v. Mayor, 1 Paige, ulated by the general rules in relation to nio-548. tions and orders, with such analogies as may be Granting, however, that this motion may still found in the practice of the English Court of be employed, no such default by the plaintiff is chancery on July 1, 1865. The contention of the appellant is (1) That he was in no default when the order was made; and (2) That the order was irregular in having been made without notice. here shown as to justify its allowance. The bill was filed June 21, 1893. July 1, the defendant appeared, delaying answer, however, until ruled, and filing answer October 6. The plaintiff delayed replication, the defendant acquiescing by Under the earlier practice in chancery, if the omitting to rule him to reply. On the first Monplaintiff did not proceed with the steps necessary day of March, 1894, the amendments to the equity on his part to bring the cause to a hearing, the rules suspended proceedings until the adoption defendant's only remedy was by motion to dis- by the Court of an order for the preparation of miss the bill for want of prosecution. The pro- equity trial and argument lists. Such order was ceedings were so elaborate that neglect by the not made until August 29, 1895, when the Court plaintiff might unduly delay the cause to the adopted "Special Equity Rule No. 3;" this proprejudice of the defendant, since the latter was vided that "The Court shall, at the instance of obliged to await the successive movements of the either party, upon reasonable notice to the other plaintiff before moving in turn. Thus, it was the party, not exceeding thirty days, hear the case." plaintiff's duty, after demurrer or plea, to set the January 6, 1896, a replication was filed. March cause down for argument or take issue on the 16, 1896, the plaintiff moved the Court to hear the case, and to fix the time and place for so do- Court ex parte, and granted as if not objected to, ing, and to make the necessary orders for such or refused, in his discretion." As nothing that hearing. March 30, 1896, the defendant moved to operates as a final order is grantable of course, dismiss the bill for want of prosecution. The a motion to dismiss falls within the provisions of Court held both motions under consideration un- this section, and an order of dismissal without til December following. December 9, an order notice is clearly irregular. It appears, however, was made dismissing the bill for want of prosecu- that in the present case the Court directed and tion; and December 10, the Court endorsed on heard argument on the motion to dismiss, though the motion to hear a direction for filing as of under protest on the part of the plaintiff as conMarch 16, 1896, and it was accordingly filed as of trary to the rules of practice. In the absence of that date. a rule fixing the character of the notice, this diIt appears that no notice was given the plain-rection by the Court may perhaps be construed as tiff of the motion to dismiss. This was a disre- notice, and the plaintiff by proceeding to argugard of the long settled practice. By the 17th of ment waived other notice. The lack of notice Lord Bacon's Ordinances, upon the plaintiff's complained of was thus cured. default for one term after answer the bill might On the record, as it stood at the time of hearbe dismissed by the defendant of course without ing, the plaintiff was in no default. Even had motion; but after replication it could not be dis- his delay in moving to hear the cause been a demissed without motion and notice. Previous to fault, it was made good by that motion before the General Orders of 1823 and 1831, "there were the motion to dismiss; and had the latter been few applications which more uselessly occupied first made, the default, under the practice of the the attention of the Court, and were more various- strictest period, would have been made good by ly decided, than motions to restore a cause dis- a motion to hear before a hearing on the motion missed for want of prosecution without notice": to dismiss. Conceding that the plaintiff was I Smith's Chancery Practice, 331. By those or- bound to speed the cause when the defendant had ders, no bill could be dismissed at any stage of equal power to move for that purpose, the motion the proceedings, without notice; and through all to hear was all that was incumbent on him. He subsequent changes of the English practice this could be in no default while this motion was unprovision has been retained. Our own equity der consideration by the Court. Aside from rules are to the same effect. By Rule XIII., sec. this, reasons for holding the cause in abeyance 73, "All motions for rules or orders, and other proceedings, which are not grantable of course, or without notice, shall be made on application to the Court or a law Judge at chambers, and entered in the equity docket, and shall be heard at such time thereafter as shall be assigned therefor by the Court or Judge at the time of the making the application; and if the adverse party or his solicitor, after notice thereof, shall not then appear, or shall not show good cause against the same, the motion may be heard by any law Judge of the are suggested in the history of the case, which may have been sufficient to excuse any apparent default. But as no default is shown, the plaintiff cannot be thus summarily turned out of Court. The order dismissing the bill is reversed, the bill is reinstated, and it is ordered that the Court below proceed in due course to hear the cause upon the motion presented March 16, 1896, and filed as of that date. W. M. S., Jr. WEEKLY NOTES OF CASES. Keenan v. Waters. and used for the purpose of ironing and drying clothes. This mangle consisted of a large revolving steam-heated cylinder about sixteen inches in diameter which engaged with three smaller padded rolls each about four inches in [No. II. diameter, a brass-faced feeding table, a receiving board and a screw pressure devised to regulate the distance between the said heated cylinder and the padded rolls. The mangle had no guard rail. It did not appear that the plaintiff had ever worked on a mangle of this particular make or April 2, 1897. kind. The defendants had in their employ in said laundry an engineer, whose duty it was to run Master and servant-Negligence-Obligation of and generally supervise and keep in repair all master as to machinery—Duty of instruction. In order to save himself from liability to his employees, an employer is not bound to provide the safest machinery, or the newest or most approved appliances; it is sufficient if the machinery be of an ordinary character and such as can, with reasonable care, be used without danger to the employee. An employer is not bound to instruct an employee of mature years, who claims to be experienced in the business upon which he is about to enter, although he may not be familiar with the particular machine to be used by him. the machinery therein, a head laundress and two assistant laundresses, including the plaintiff. On the morning of February 21, 1894, the engineer operated said mangle for about one-half an hour or more, briefly showed the plaintiff how to operate said machine without advising her of its dangerous character, and left her engaged in feeding moistened tablecloths to said mangle with the head laundress standing on the opposite side thereof receiving the same. Shortly after the engineer's departure, the plaintiff in feeding An employer who puts an employee to work upon a said tablecloths caught the fingers of her right steam mangle of a kind in general use, is not liable for an hand between the heated cylinder and the first accident to the employee, which occurs through the absence of a guard rail, when it appears that machines of padded roll between which the cloths were passthe kind were not constructed with guard rails, and could ing. Whereupon she gave an outcry and the not be operated with such rails attached, although other head laundress stopped the machine and endeavsteam mangles were made which were protected by rails.ored to loosen the pressure above referred to, in Appeal of Sarah Keenan, plaintiff, from the judgment of the Common Pleas No. 4, of Philadelphia County, in an action of trespass in which G. Jason Waters, who was sued with G. Waters, was defendant. order to allow the plaintiff's hand to be removed, but she was unable to do so, as the pressure was stiff for want of use, and the plaintiff's hand was thus pressed against the heated cylinder until three of her fingers were crushed and burned off, and her hand was thus extricated. This action was brought against G. Waters and It was testified that all improved mangles, for G. Jason Waters, trading as G. Waters & Son. the period of five years past, have been supplied Service was accepted on behalf of G. Jason Wa- with a device known as a guard rail, consisting ters, and a return of nihil habet made as to G. of a brass rod running parallel with the line of Waters. The case went to trial against G. Jason contact of the steam heated cylinder and the first Waters alone. On the trial, before WILLSON, J., padded roll, and about three inches in front of the facts appeared as follows: The defendant it, and about one inch above the feeding table, was a proprietor of "The Windsor," a hotel at and it is thus rendered impossible for the fingers Atlantic City, New Jersey. The plaintiff applied of the operator to come in contact with the refor a position as laundress, and presented the volving rolls as the materials being fed pass befollowing recommendation from the keeper of neath the guard rail. an intelligence office: "Bearer, Sarah Keenan, Expert testimony was given to show that manwill I trust suit you as experienced laundress on gles were dangerous to the operator without a machinery." The plaintiff had worked two years guard rail, and that a guard rail could easily off and on at laundry machinery, and was twenty- have been adjusted to said mangle at a trifling exfour years old. She was employed as assistant pense, which would have rendered it entirely safe. The defendant presented testimony that the In the defendant's laundry was a machine machine in question was a Dolph mangle, and known as a "mangle," propelled by steam power had been selected with care by him; that the laundress. Zurn v. Tetlow, 134 Id. 215. Dolph mangle was in general use, and that it was one of the best machines used in laundries, and that it had never been provided with a guard rail, and accidents were less frequent on this machine than on others differently constructed and provided with alleged guards; and it was also in testimony that it would be impracticable to operate the Dolph machine if it had an alleged May 17, 1897. FELL, J. This case belongs to guard rail put upon it. The Court directed the an increasing class in which the attempt is practijury to find a verdict for the defendant. Verdict cally to hold employers liable as insurers of the accordingly and judgment thereon. The plaintiff safety of their employees. The plaintiff was emtook this appeal and assigned as error the direc-ployed to work in a laundry connected with a hotel, and while engaged in operating a machine tion to find for defendant. C. Percy Willcox and Joseph Hill Brinton, for used for drying and ironing clothes, her hand appellant. was caught between the rollers and injured. The Whether the defendant was bound to have in- general grounds for negligence alleged were the structed the plaintiff as to the peculiar dangers failure to provide a reasonably safe machine, and of the machine, as its use was new to her; or, the failure to inform the plaintiff of the danger under the evidence, the plaintiff had had sufficient incident to the operation of the machine by which past experience to relieve the defendant of the she was injured. It is claimed that the machine duty of instruction, was for the jury. was defective and dangerous because of the absence of a guard-rail to prevent the hands of the operator from getting between the rollers. It appeared from the testimony that the machine was in perfect working condition and was of a kind that was in general use; that guard rails were not used on machines constructed as this was; and that such machines could not be operated with guard rails attached. Proof that other ironing machines differently constructed and furnished with guard rails were in use, and that their operation might be attended with less risk of accident, imposed no liability on the defendants. It was not shown that the machine in question was not in general use, nor that guard rails had been or could be used on such a ma Not the opinion of the jury as to what is a chine, nor that any safer machine was in general suitable machine. Titus v. R. R. Co., 136 Pa. 618. use. In order to save himself from liability for accidents to his employees, an employer is not The appellant was a woman of mature years, bound to provide the safest machinery or the and according to all the evidence, was an "ex- newest or most approved appliances. "If the maperienced laundress on machinery." She had so chinery be of an ordinary character, and such as represented herself to the appellee when he en-can with reasonable care be used without danger gaged her, and she delivered to him a letter to to the employee, it is all that can be required of that effect before she actually was taken into his the employer; this is the limit of his responsi employment, and when she engaged as such bility and the sum total of his duty": Payne v. "laundress on machinery," she assumed the risks of her employment. Patterson v. R. R. Co., 76 Pa. 393. Railway Co. v. Bresmer, 97 Id. 106. Manufacturing Co. v. McCormick, 118 Id. 519. Coal Co. v. Hayes, 128 Id. 307. Reese, 100 Pa. 301. Generally machinery in operation is dangerous, and the test of the liability of the employer is not whether the employee has been exposed to danger, but whether he has been so exposed through neglect to provide reasonably safe machinery, and the test of reasonable safety is ordinary use: Ford v. Anderson, 139 Pa. 261; Kehler v. Schwenk, 144 Pa. 348. In Titus v. R. R. Co., 136 Pa. 618, it was said by our brother MITCHELL: "All the cases agree that the for Philadelphia County, in an action of trespass master is not bound to use the newest and best wherein Patrick Nugent was plaintiff. appliances. He performed his duty when he fur- This was an action to recover for an injury nished those of ordinary character and reasonable suffered through the alleged negligence of the safety, and the former is the test of the latter; servants of the defendant cable railway company. for in regard to the style of the implement or na- The facts appearing on the trial before PENNYture of the mode of performance of any work, PACKER, P. J., were as follows: On the evening 'reasonable care' means according to the usages, of August 23, 1893, the plaintiff was struck by a habits and ordinary risks of the business." cable train of two cars at the 15th street crossing If any duty rested on the defendants, to in- of Market street. The cars were furnished with struct the plaintiff in the use of the machine, it automatic axle bells and were moving slowly at was fully discharged. She was not of immature the time the plaintiff was struck. There was some age or without experience in the use of laundry testimony that the gong was not heard and there machinery. She was twenty-four years old, and was conflicting evidence as to the headlight behad been employed in a laundry for two years, ing burning. The plaintiff was crossing from the and had worked for several weeks at an ironing south to the north side of Market street along the machine. At the time of her employment she told west side of 15th street. He stopped at the south the defendants what knowledge and experience side of the east bound track on Market street on she had, and they might well have assumed that which a car was approaching far enough away she needed no instruction. The engineer in charge for him to cross before it arrived. Some wagons of the machine before starting it questioned her were passing on the street preceding this car and to see whether she was familiar with the use of when the last of the wagons had passed across this machine, and stood by and watched her op- Market street to the east side of 15th street, erate it until he was satisfied that her statement plaintiff testified that he looked east as far as these as to her knowledge and experience was correct, retreating wagons would permit him (some 77 and that she was a skilled laundress. More than feet) but saw no west bound car. Other witnesses this could not be required. There was an entire testified to have seen the car. The plaintiff crossfailure to establish any ground of negligence on which a recovery could be sustained, and the direction to the jury to find for the defendants was properly given. The judgment is affirmed. Jan. '96, 602. Supreme Court. H. B. March 23, 1897. Nugent v. Traction Company. ed the east bound track and was struck by the car upon arriving on the west bound track on the north side of Market street. There was evidence that the plaintiff had been drinking shortly before the time of the accident. The Court was requested by the defendant to charge: 5. "As the plaintiff testified in this case, that the last time that he looked eastward for the ap Street railway company-Negligence Duty of proaching car was when he was on the south side pedestrian in crossing streets. of the east bound track, a distance of some twelve feet from the west bound track upon which he In an action for damages for injuries received from a was struck, he was guilty of contributory neglistreet railway car it is immaterial whether the gong or bell of the car be rung if it appears from the evidence gence as a matter of law, and therefore cannot that the car was in plain sight of one who was looking recover in this case." Refused. towards it. 6. "Under all the evidence in this case the ver It is not error to give binding instructions in defend-dict must be for the defendant." Refused. (First ant's favor where the evidence shows that the plaintiff and second assignments of error.) stepped upon a track and was immediately struck by a moving car that came in the direction in which he says he looked. The plaintiff is guilty of contributory negligence if the evidence discloses that he could have seen if he had looked before going upon the track. In the course of his argument to the jury, counsel for the plaintiff referred as follows to a physician, a witness for plaintiff, "Is he the kind of a doctor that the traction company agents can go to and put their slimy fingers on, and come into Court It had appeared in evidence that Dr. Hassler, the physician who testified for the defendant that plaintiff was drunk, and who had testified in many traction company cases, and who was the senior resident physician at the hosAppeal of the Philadelphia Traction Company, pital to which plaintiff was taken, had, about 12 from the judgment of the Common Pleas No. 2, o'clock the day after the accident, and after he In the streets of a crowded city it is not sufficient for a pedestrian to stop upon one side of a busy street upon which is a railway and then seeing an opening, to cross without further attention to the traffic of the street or the dangers to be encountered. |