Reese v. Hershey
29 A. 907
Pa.
1894
Check Treatment

Opinion by

Mb. Justice Mitchell,

The eviden ce of the general use of the machines throughout the trade, without guards, (assignment 10 to 16 inclusive) should have been admitted. In all actions for negligence it is important that the jury should be informed explicitly just what the negligence consists in. The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover the use of a dangerous machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger but negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business: Titus v. R. R. Co., 136 Pa. 618; Kehler v. Schwenk, 144 Pa. 348. It is true that the general custom would not be conclusive of this case, under its peculiar circumstances to be noticed next, but it was the starting point in the defence, and the defendant was entitled to show it affirmatively so as to impress it on the jury’s mind. Moreover the evidence offered in the fifteenth assignment of error, to show that the same kind of machines were used without guards .in another factory where plaintiff’s son ha^d previously worked, bore directly on the only point in the case on which the defendant’s negligence could be rested. This was that if plaintiff’s son had only been accustomed to the machine with the guard, and might be liable from force of habit, or ignorance of the increased danger when the guard was removed, to push his fingers too close to the rolls and thereby get them caught, he would have been entitled to spe*258cial instruction as to this danger. As to what conversation or orders took place between the boy and his employer on this point, the evidence was conflicting. The case therefore could not have been taken from the jury, but the defendant was entitled to have explicit directions that the use of the machine without a guard being the ordinary habit of the trade was not negligence prima facie, and would only become so if the boy’s inexperience was such that he ought to have had special instructions when the change was made. The learned judge not only failed to give the defendant the benefit of the general rule in his charge, but excluded the evidence which would have put the facts before the jury.

There was error also in the charge as to damages. The boy was earning two dollars and a half a week. If it was claimed that he was likely to earn more in the near future the plaintiff should have proved the fact as part of his case, but the learned judge without any evidence on the subject threw in a suggestion that the boy might get more “by way of. promotion.” The verdict was in favor of the father for more than double the boy’s gross wages until he should reach twenty-one. We cannot say that this suggestion as to promotion may not have contributed to this result.

The learned judge appears in the opening of his charge to have read, the plaintiff’s statement to the jury, including the averment of damages. This is exceedingly bad practice. It tends to get figures and amounts into the jury’s mind without evidence. Here again the verdict is suggestive, for it. is for one thousand dollars, the exact amount of the technical ad damnum clause in the statement.

Judgment reversed and venire de novo awarded.