70 W. Va. 676 | W. Va. | 1912
Malky Shaw obtained a verdict and judgment for $1,500 in an action against the Hazel-Atlas Glass Company, which has brought the case to this Court.
Malky Shaw, a Russian girl between seventeen and eighteen years of age a.t the time of the accident involved in the case, was employed in the factory of the glass company in making from tin and other metals different articles, among them jar tops, jar caps, jar covers, can-covers and other things. Malky Shaw was put to working a machine or press driven by steam known as a trimmer used for trimming off the edges of jar or can metal caps. This machine was so constructed that a part of it called the “plunger” is forced into a part' called a “die”, and then drawn out of it by fast motion, as many as 135 times per minute. Sometimes the pieces of metal for making caps get fastened in the machine preventing its operation. One of these caps became fastened, and Malky Shaw in trying to loosen it with her fingers lost the ends of two fingers by mashing, causing amputation.
One assigned error is for overruling the demurrer to the declaration. It is specified that it does not show negligence. It is prolix and elaborate in so doing. The first count alleges that
Labatt on Master and Servant, sections 252, 253, lays down the law to be, as to infant servants, “owing to the more restricted capacity of young persons for understanding the perils of their employment, the law imposes an obligation to give them detailed and special instructions in many instances in which a general notification would have been an adequate warning to an adult.” * * * * “In numerous cases the servant has been allowed to recover for the reason that the court felt itself unable to sajq as a matter of law, that the master’s culpability might not reasonably be inferred from evidence which indicated that the servant though warned in general terms, has received no special warning in regard to the particular danger to which the injury was due, or no explicit instruction as to the proper manner avoiding it, and that, under the circumstances, the information which the master had thus failed to communicate was necessary to enable the servant to obtain an intelligent comprehension of the danger. For obvious reasons the courts are less disposed to interfere with a verdict for a minor on this ground than where the injured person was an adult.” The master must “give him such instruction as will enable him to avoid injury.” Must give “such notice and instruction as is reasonably required by the. youth, inexperience, or want of capacity of the servant.” Giebill v. Collins Co., 54 W. Va. 518.
The second count alleges the failure to give the plaintiff instructions, and it also alleges, with particular specifications, defects in the press and bad metal used "in making caps, tending to cause the stop, and surely alleges duties and negligence in defective machines and materials the servant was to handle.
It is hardly necessary to cite law for the proposition that the duty of furnishing safe machinery is the master’s duty, non assignable. The fellow servantcy doctrine has no application to this case.
Such being the legal principles of the case, and the jury having found, on much oral evidence, and conflicting, either that proper instruction against danger was not given, or that the press was defective, one or both, we cannot reverse the circuit court for its refusal of a new trial.
It is argued that the danger of unfastening the can top with the fingers was plain to Malky Shaw, and she was guilty of contributory negligence. That was a jury question under all the evidence. The girl was young and open to rashness of youth, ignorant and inexperienced as to dangerous machinery, and she had been directed to remove can tops without help. When the foreman was called to her aid to remove a can top, he used his fingers to release the top, and thus suggested to- the girl that use of the fingers was not dangerous. She was thus misled. She but followed the foreman. The gjrl’s evidence was that the foreman did not warn her against removing the can top with
Judgment affirmed.
Affirmed.