Appeal, No. 191, March T., 1960, from judgment of Court of Common Pleas of Mercer County, June T., 1959, No. 141, in case of Donald G. Smith v. Wheatland Tube Company et al. Judgment reversed.
Philip E. Brockway, with him William C. Kuhn, and Brockway and Brockway, for appellant.
John Q. Stranahan, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
The events which brought about this lawsuit, as narrated in the opinion of the court below, demonstrate quite clearly that the question of contributory negligence was one of fact for the jury.
The position taken by the plaintiff on the trailer, in the conscientious discharge of the duties which were part of his job, was not so obviously perilous that it can be said, as a matter of law, that he contributed to the misfortune which befell him.
Nor can it be declared, as a matter of law, that the plaintiff's remark to his fellow-employee: "Get out of there, that man is going to kill you," revealed an acknowledgment of mortal danger. The words were an obvious exaggeration. Certainly, Donald G. Smith had no notion that the crane operator intended to kill McFeaters or anyone else. It was the kind of an expression often used among workmen to suggest sloppy operation and in no way to be associated with homicidal action, criminal or accidental.
Under these circumstances, the trial court should have submitted the question of the plaintiff's alleged contributory negligence to the jury, together with the question of defendant's negligence.
Mr. Justice BELL dissents.