Kehler v. Schwenk, 22 A. 910

Kehler v. Schwenk

22 A. 910

Pennsylvania Court of Common P...

1891

Check Treatment

Opinion,

Mr. Justice Mitchell :

We have had occasion several times recently to lay down the rule that the test of liability of an employer to an employee for injury rеceived in the course of the employment is not danger, but negligence. The employer is bound to furnish machinery and appliances that arе of ordinary character and reasonable safety, and the former is the conclusive test of the latter. Whatever is, according to the general, usual, and ordinary course, adopted by those in the same business, is reasonably safe within the meaning of the law. As said by our Brother Green in North. Cent. Ry. Cо. v. Husson, 101 Pa. 1, an employer is not liable “ because a particular accident might ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have been prevented by some special device оr precaution not *358in common use;” and by our Brother Williams, in ShipBuilding Works v. Nuttall, 119 Pa. 149, “it is not enough that some persons regard it as a valuable safeguard. The test is gеneral use.” Nor can the jury ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be permitted to set up their judgment against the general customs of the business: Titus v. Railroad Co., 136 Pa. 618. In the present case, it was in undisputed evidence that there were three kinds of hitches to the dumper in common use, each having its own peculiar advantages adapted to different conditions of the dirt-bank. Much evidence was given as to whether it would not have been practicable and better, under the conditiоns of this colliery, to use the side-hitch, or the box centre-hitch. This question, though made the burden of the contest, was entirely irrelevant. It was exclusively for thе determination of the defendants themselves. Where, as in the present case, the evidence shows clearly that several methods are in gbnеral use, the choice being a matter of judgment, depending on the surrounding conditions, the owner has the absolute discretion to select acсording to his own judgment. The necessary control of his own business demands that this right shall be strictly maintained. Except to make another man’s will for him, after his death, thеre is nothing which a jury is more apt to think it can do better than the owner, especially under the stress of a claim for damages by one who has beеn injured, than to say how another man’s business ought to have been managed, and nothing in which juries should be held more strictly and unflinchingly within their proper province. As already said, there was a large amount of evidence as to the superiority of the side or upper hitch, the admission and discussion of which tended naturally to lead the jury to suppose that they might find a verdict on their own judgment which was the best; and this was put explicitly before them by the charge that “ the proper question for you to determine is as to which of these hitches was the proper hitch for these parties to make use of at this collieiy.” This was giving the jury an entirely erroneous view of the point of the case and of their province in regard to it. They should have been told that if they found from the evidence that the lower hitch was the one in general use upon dirt-banks with an up grade, there was no negligence in the use of thаt hitch by the defendants. The ninth assignment of error must be sustained.

*359As the case is to go back for another trial, we may also say that the measure of damages quoted in the eighth assignment is somewhat vague, and the expression, “ You would not be willing to lose your arm for the world, or for the wealth of a Vanderbilt,” thоugh followed by the caution ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that that would be no test of value, was an ■ undesirable form of putting the matter to the jury, and tended to inflame damages in a class of cases where juries are prone enough to measure verdicts by sympathy with the injured, more than by regard for the strict right of the parties.

The error complained of in the second and fourth assignments is, in brief, the charge that, while the law presumes a boy of fourteen to be capable of appreciating danger, and therefore responsible for his own negligence, yet he is not to be held to the same degree of prudence as a man of mature years. It . is notable that in the legion of cases upon negligence in our books this particular question has recеived little attention. But the principles upon which it must be settled are firmly established. All the cases agree that the measure of a child’s responsibility is his capacity to see and appreciate danger, and the rule is that, in the absence of clear evidence of lack of it, he will bе held to such measure' of discretion as is usual in those of his age and experience. This measure varies, of course, with each additional yеar, and the increase of responsibility is gradual. It makes no sudden leap at the age of fourteen. That is simply the convenient point at which the law, founded upon experience, changes the presumption of capacity, and puts upon the infant the burden of showing his personal wаnt of the intelligence, prudence, foresight, or strength usual in those of such age. The standard remains the same, to wit, the average capacity of others in his condition. That this is the rule as to children under fourteen, is held in all our cases from Rauch v. Lloyd, 81 Pa. 358, to Sandford v. Railroad Co., 136 Pa. 84. That it also applies to infants over fourtеen, follows from the same ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reasoning, and is expressly ruled in Oakland Ry. Co. v. Fielding, 48 Pa. 320. In that case, plaintiff’s son, a youth between sixteen and seventeen, while running with а- fire-engine stepped into a hole in. the street, fell, and was run over. The judge charged the jury upon the point of contributory negligence, that they must consider “ the age, strength, size, and *360activity of the plaintiff’s son, and, if it was the habit of boys of his age and capacity to run with engines to a fire, and tp аssist in drawing them, the jury may take the fact into consideration in determining whether or not the plaintiff’s son was guilty of negligence or misconduct. The plaintiff’s son was bound ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to exercise the same degree of caution, prudence, aird discretion that other boys of his age and capacity ordinarily exercise. If he did this, he was exercising ordinary care and prudence; but, if not, he was guilty of negligence.” This was affirmed upon the reasons given by the judge below. Nagle v. Railroad Co., 88 Pa. 35, much relied on by appellant, is in entire harmony with the foregoing. In that case a boy of fourteen ran across a railroad track without looking, and the court held that this was negligence per se, and sustained a nonsuit. “ At fourteen,” says PAXSON, J., “ an infant is presumed to have sufficiеnt capacity and understanding to be sensible of danger, and to have the power to avoid it; and this presumption ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age.”

In the present case, there was evidence that the unhitching of a dumper of this kind was manifestly dangerous; and, on the other hand, that it was entirely safe and commonly performed by boys. It is quite clear that the amount of danger depended very largely on the length and weight of the chain, the condition of the track, and the speed of the mule. These factors made up a varying standard which was necessarily for the jury to determine, and the judge was right in leaving it to them, and in the rule of lаw which he gave for their guidance.

The other points were based upon the assumption that the evidence was undisputed, and included a peremptory direction in defendant’s favor. The learned judge was right in refusing them, for that reason.

Judgment reversed, and venire de novo awarded.