144 Pa. 348 | Pennsylvania Court of Common Pleas, Northumberland County | 1891
Opinion,
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 received in the course of the employment is not danger, but negligence. The employer is bound to furnish machinery and appliances that are 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. Co. v. Husson, 101 Pa. 1, an employer is not liable “ because a particular accident might have been prevented by some special device or precaution not
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 received 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 be held to such measure' of discretion as is usual in those of his age and experience. This measure varies, of course, with each additional year, 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 want 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 fourteen, 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 a- 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
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 law 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.