211 F. 580 | 2d Cir. | 1914
(after stating the facts as above). This is a common-law action brought by an employé who was set to work in a place alleged to have been unsafe. The plaintiff, a minor and inexperienced, was without knowledge of machinery. No warning of the danger to which he was exposed was given; neither were any instructions issued. He was ordered to clean out the bottom of the elevator shaft and remove the cement which had accumulated in it.
The elevator had not been connected with the other machinery in the mill. The weight of the cement and the buckets on the back side of the chain being from 20,000 to 29,000 pounds in excess of the weight on the opposite side of the endless chain, the elevator, not having been connected with the machinery, was bound to move and the endless chain revolve to a state of equilibrium unless blocked or fastened, as soon as the cement in the boot was sufficiently removed to release it. It was the custom in such cases to chain the elevator or block it by means of beams or bars before sending men down into the shaft on such an errand as the plaintiff was ordered to perform. No such precaution was taken 'in this case, and, when the plaintiff had sufficiently removed the cement from the boot to release the chain, it began to move and the plaintiff was caught in it and the accident followed.
“It is quite clear that tlie contract between employer and employed involves on tbe part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him’ to unnecessary risk.”
And in Williams v. Birmingham Battery & Metal Co., L. R. 2 Q. B. Div. 338, 345, Romer, L. J., said that:
The authorities “appear tó me to establish the following propositions as to the liability at the common law of an employer of labour. If the employment is of a dangerous nature, a duty lies on the employer to use all reasonable precautions for the protection of the servant. If by reason of breach of that duty a servant suffers injury, the employer is prima facie liable.”
, In the United States, also, it is established beyond controversy that at common law it is the positive duty of the employer to furnish his employé with a reasonably safe place in which to work. Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440; Welle v. Celluloid Co., 175 N. Y. 401, 67 N. E. 609; Rincicotti v. John S. O’Brien Contracting Co., 77 Conn. 617, 60 Atl. 115, 69 L. R. A. 936; Libby v. Banks, 209 Ill. 109, 70 N. E. 599; Foster v. New York, etc., R. Co., 187 Mass. 21, 72 N. E. 331; Finnerty v. Burnham, 205 Pa. 305, 54 Atl. 996; Collins v. Harrison, 25 R. I. 489, 56 Atl. 678, 64 L. R. A. 156; Geno v. Fall Mountain Paper Co., 68 Vt. 568, 35 Atl. 475.
This duty of the employer to furnish a safe place in which to work is a positive obligation resting on him and which he camjot escape by delegating the responsibility to another. Texas, etc., R. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136; National Steel Co. v. Lowe, 127 Fed. 311, 62 C. C. A. 229; Kirk v. Sturdy, 187 Mass. 87, 72 N. E. 349; Pursley v. Edge Moor Bridge Works, 168 N. Y. 589, 60 N. E. 1119; Ide v. Fratcher, 194 Ill. 552, 62 N. E. 814; Newton v. Vulcan Iron Works, 199 Pa. 646, 49 Atl. 339.
In view of what was to be done in the shaft and of the danger which was involved and would inevitably arise unless the conveyor was secured and because it was not secured, we do not think this court should hold that the plaintiff was furnished a reasonably safe place in which to work. It was an unsafe place, made unsafe by the defendant’s own negligence.
“The age of the plaintiff is not a factor to be considered by the jury. The plaintiff is not a child and is to be regarded as a full grown man so far as any question in this case is concerned.”
The court read the request and then said:
“Age is a factor to be taken into consideration along with all other factors. He was at the time of such age that the question of tender years as a necessary legal proposition does not enter into the case. But his age is to be considered along with all the other facts. A young man 17 might be much more mature and competent than another man of 25; there isn’t any necessary inference that I can charge the jury about. It is simply a fact to be taken into consideration with all the other facts.”
Whereupon the defendant excepted to the court’s refusal to charge as requested. We discover no error prejudicial to the defendant in the court’s instruction respecting the plaintiff’s age. If the court had gone farther and emphasized in stronger terms the duty of an employer to an inexperienced employé and had directed the attention of the jury to the duty of the employer to warn and instruct such an employé as to the danger incident to the employment, it would have been difficult even then for the defendant to predicate any error upon such an instruction. The courts have held in numerous cases that persons who employ minors must take notice of their lack of judgment and must exercise greater care toward and for them than is required by law to be exercised toward and for adults. O’Connor v. Adams, 120 Mass. 427; Smith v. O’Connor, 48 Pa. 218, 86 Am. Dec. 582; Flynn v. Erie Preserving Co., 12 N. Y. St. Rep. 88; East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914; Larson v. Berquist, 34 Kan. 334, 8 Pac. 407, 55 Am. Rep. 249.
And they have held that this duty of warning and instructing the employé, like the duty to provide a safe place to work, cannot be delegated; that the employer cannot thus relieve himself of the responsibility which the law imposes on him. Mercantile Trust Co. v. Pittsburgh, etc., R. Co., 115 Fed. 475, 53 C. C. A. 207; Louisville, etc., R. Co. v. Miller, 104 Fed. 124, 43 C. C. A. 436; Grimaldi v. Lane, 177 Mass. 565, 59 N. E. 451; Smith v. Hillside Coal, etc., Co., 186 Pa. 28, 40 Atl. 287; Simone v. Kirk, 173 N. Y. 7, 65 N. E. 739; Addicks v. Christoph, 62 N. J. Law, 786, 43 Atl. 196, 72 Am. St. Rep. 687.
In Judge Cooley’s work on Torts, that eminent jurist states that:
“It would be gross injustice, not to say absurdity, to apply in the case of infants the same tests of the master’s culpable negligence which are applied in the ease of persons of maturity and experience.” 2 Cooley on Torts (3d Ed.) p. 1127.
In another place he says:
“The master may also be guilty of aetionable negligence in exposing persons to perils in his service which, though open to observation, they by reason of their youth or inexperience do not fully understand and appreciate and in consequence of which they are injured. Such cases occur most frequently in the employment of infants.” Id. p. 1126.
The rationale of the doctrine would seem to be that a master is as a prudent man under obligations to regulate his conduct with due reference to the fact that minor servants on the average are less capable of understanding the dangers of their employment as well as less capable of avoiding the dangers which they do understand. It is the fact of immaturity rather than the fact of minority that the master is bound to regard. Labatt on Master & Servant, vol. 1, § 20 (Ed. 1904); Alabama Mineral R. Co. v. Marcus, 115 Ala. 389, 22 South. 135. And see Kentucky C. R. Co. v. Gastineau, 83 Ky. 119; Michael v. Stanley, 75 Md. 464, 23 Atl. 1094.
The judgment is affirmed.