Tagg v. McGeorge, Appeal, No. 121

Appeal, No. 121 | Pa. | May 22, 1893

Opinion by

Mb. Justice Dean,

William F. Tagg, a boy past thirteen years of age, was employed by defendants in their woolen mill at Darby, Delaware county. He went to work with the consent of, and by contract with, his father, who worked in the same mill; the boy commenced on October 10, 1887, piecing at what is known as a woolen mule; his wages were fixed at two dollars ($2.00) per week; the usual wages of a piecer are about six dollars ($6.00). There was evidence tending to show that Henry T. Kent, one of- defendants, made the contract for employment, and then put the boy in charge of Charles Chadwick, who had been foreman in the mill for many years; under his directions and control he remained as a piecer at the mule up until the 31st of December, 1887. About twelve o’clock of that day, while cleaning the machine with waste, it being then running, the waste caught in the wheels, his hand was drawn in, and so completely crushed that amputation was necessary.

The plaintiff then brought suit to recover damages, averring negligence on part of defendants which resulted in the injury: (1) In putting a young and inexperienced boy to work at dangerous machinery without explaining to him its character, or warning him of its danger. (2) In directing him by the foreman, Chadwick, to hurriedly clean the machine while it wras running, without informing him of the peculiar danger incident to such work.

The law applicable to the issue is well settled. In the textbooks, and with rare exceptions in all the adjudicated cases, the rule laid down in substance is : When young persons without experience are employed to work with dangerous machines, it is the duly of the ftnployer to give suitable instructions as to the manner of using them, and warning as to the hazard of carelessness in their use; if the employer neglects this duty, or if he give improper instructions, he is responsible for the injury resulting from his neglect of duty.

He is not answerable for injury to adults; nor for injuries to young persons who have had that experience from which knowledge of danger may reasonably be presumed, and that discretion which prompts to care.

The cases cited by counsel for appellant are not in conflict with this rule. In Zurn v. Tetlow, 134 Pa. 213" court="Pa." date_filed="1890-04-14" href="https://app.midpage.ai/document/zurn-v-tetlow-6239856?utm_source=webapp" opinion_id="6239856">134 Pa. 213, the boy was between fourteen and fifteen, and had received such instructions from the foreman as were necessary to the nature of his employment. In O’Keefe v. Thorn, 24 W. N. 379, the boy was over fourteen; he was employed to shove tin plates under a stamping machine, and was injured by thrusting his hand under the stamp; the machine was not dangerous; the consequence of putting the hand under the stamp was as obvious to a boy of fourteen as to a man of forty.

There has been no departure by this court from the law so clearly and concisely stated by our brother Williams in Rummell v. Dilworth, 131 Pa. 509" court="Pa." date_filed="1890-03-03" href="https://app.midpage.ai/document/rummel-v-dilworth-porter--co-6239705?utm_source=webapp" opinion_id="6239705">131 Pa. 509 : “ In the case of young persons it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate and to which they should not be exposed. The duty in such cases to warn and instruct grows naturally out of the ignorance and inexperience of the employee, and it does riot extend to those who are of mature years and who are familiar with the employment and its risks.”

This was the law, as stated in terms that could not be misunderstood by the court below to the jury. There was evidence tending to show that the woolen mule was a dangerous piece of machinery even to the adult workman, and that it was highly dangerous to one attempting to clean it while running. As to whether the boy had received any instructions from the foreman, or had by experience or in any other way acquired a knowledge of the machine and the danger of attempting to clean it while running, there was conflicting evidence. It was of that character that the jury alone could determine the truth, and it was with proper instructions submitted to them. They were told explicitly, more than once, thaff if the boy, by instructions and warning from the foreman, or by information from others, or by experience while tending the machine, had knowledge of its dangerous character, there could be no recovery.

Complaint is made of the answer of the court to plaintiffs’ second point, because of the use of the word “ perhaps.” The point, in effect, requested the court to say that, if the jury found the boy to be young and inexperienced, it was the duty of defendants to explain to him the danger. The answer was: —“ I affirm that point, gentlemen, also with the qualification, perhaps, that if he had that experience from any other source, then it would not be necessary.” It is argued, that the direction should have been positive and peremptory, that if he had the experience, no matter where obtained, instructions and warning on part of the foreman were immaterial, and there could be no recovery. Picking out this single word, and assuming that plaintiffs’ second point embraced all the instructions upon that subject to the jury, it is liable to the charge of error. But, taking this answer in connection with what was said in other portions of the c harge, there was no room for misunderstanding on part of the jury. In the body of the charge this pointed language is used:

■ “You are first to find whether this boy had knowledge, either by previous experience either at Wolfenden’s or any other place, or by knowledge obtained while he was operating this machine after running it two or three months, that it was dangerous. Now if he knew it was dangerous to attempt to clean that machine while it was in operation, then he cannot recover.” This same positive instruction, in substantially the same language, was given three times in the general charge, and the same idea or thought is expressed in five of the nine answers to plaintiffs’ points. In view of this oft repeated correct statement of the law, we must assume that the jury could not have been misled by a single inadvertent use of a word which did not express correctly the meaning of the court.

So far as concerns the general rule applicable to employers and young and inexperienced employees, the law was plainly and correctly stated to the jury; the contradictory evidence was impartially submitted to them that they might find whether it was a fact that the employment, cleaning a running machine of this character, was dangerous; whether the boy was ignorant and inexperienced, and whether the employer had failed in duty in not instructing or warning him. This disposes of appellants’ 1st, 2d, 3d, 6th and 7th assignments of error; no one of them is sustained.

The 4th and 5th assignments are to the answers of the court to plaintiffs’ 4th and 5th points. There was evidence on part of the plaintiff tending to show that another boy named Tower at another machine, just before the accident, had been taken away, and that the foreman Chadwick said to Tagg, “ Hurry up, now, for when you get done cleaning yours you have to do Tower’s afterwards.” It was argued that here was an exacting master urging a young boy to the hurried performance of dangerous work, cleaning a machine while in motion, and imposing on him a double duty; if the boy obeyed the command of the master, necessarily the danger was largely increased by a hurried and excited performance of the work. If the evidence satisfied the jury these facts had been proven, then the plaintiffs asked the court to further instruct the jury that, if the injury happened in the effort of the boy to obey the unreasonable command of the master, their verdict should be for the plaintiff. The court, in answer to the request, said that if the boy was not aware of the danger, and, his will being subject to that of the foreman, he obeyed him because he thought the foreman knew better, or because he was afraid to disobey, then they should find for the plaintiff.

This instruction was exactly in accord with the law as held by this court in Lee v. Woolsey, 109 Pa. 124" court="Pa." date_filed="1885-03-16" href="https://app.midpage.ai/document/lee-v-woolsey-6238016?utm_source=webapp" opinion_id="6238016">109 Pa. 124; and Kehler v. Schwenk, 151 Pa. 519. In the case first cited, an adult employee was called upon by the master to execute in haste a dangerous duty, and it was said he could not be supposed to remember at the moment a danger of which he may have had previous knowledge. It would be unreasonable to demand of him the same care which would be expected in cooler moments, or in a more deliberate performance of the task. In Kehler v. Schwenk, the case of a boy over fourteen, in an opinion by our brother Gbben, we said: “ He could not be expected to have the will power of a full grown man in resisting his master’s orders. He cannot be held, therefore, as one who voluntarily engages in a dangerous service, especially by a master who specifically directed him to do the hazardous work.”

Therefore, finding nothing of merit in any of the assignments of error, the judgment is affirmed and appeal dismissed at costs of appellants.