O'Keefe v. Thorn

O’Keefe v. Thorn. In an action to recover damages for personal injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, a boy between fourteen and fifteen years of age, was employed by the defendant, to operate a machine for stamping tin shingles. The machine was worked by pressing the foot upon a treadle, which caused a heavy weight, or hammer, to come down with force upon the tin, which was placed beneath it by the operator with his right hand. The plaintiff testified that he had never worked on a machine before ; that, on the first day of his employment,' the defendant’s foreman took him to a machine, and put in five or six pieces of tin to stamp them ; that he himself then put three or four pieces in, and after that the foreman left him. On the second day of his employment, the plaintiff, while adjusting a piece of tin under the hammer with his left hand, leaned over from the bench on which he was sitting, to arrange the tin, causing the bench, which was “loose and kind of shaky,” to fall, and his foot slipped on the greasy floor and caught the treadle, bringing down the hammer on his hand. The plaintiff, on cross-examination, testified that he had “no occasion to use the left hand.” The defendant, claiming that the plaintiff was guilty of contributory negligence, and that he had assumed the risk of his employment, asked the court to enter a compulsory non-suit, which was done. Held, not to be error. Jan. 29, 1889. Error, No. 29, Jan. T. 1889, to C. P. No. 4, Phila. Co., to review a judgment of compulsory non-suit, in an action of trespass for personal injuries, by John J. O’Keefe, a minor, by his father and next friend, Tames O’Keefe, against J. S. Thorn, at Sept. T. 1887, No. 62. The pleadings are not given in the paper-books. At the trial, the plaintiff was the only witness examined. He testified, inter alia, as follows: Q. You are the plaintiff in this case, by your father ? A. Yes, sir. Q. How old are you ? A. I will be sixteen by the last of next June. Q. You were employed by Mr. Thorn ? A. Yes, sir. Q. At what time? A. On the 12th of May, 1887. Q. Had you ever worked about machinery before that? A. No, sir. Q. I mean before you went to Mr. Thorn’s? A. No, sir. Q. Flow did you happen to go into Mr. «Thorn’s place? A. I was going along at Twelfth and Callowhill- Q. That is where his place is— Twelfth and Callowhill? A. Yes, sir. And I saw a sign in the window — ‘ Boy wanted.’ I went up-stairs. I asked a clerk, and he took me into a little office where Mr. Thorn was. He asked me how old I was and where I had lived. He said he didn’t think I was quite strong enough, but said he would give me a trial. He told me to go home and get a pair of overalls and come at 12.30 — at dinner-time. Q. On that day? A. Yes, sir. Q. Did you go? A. Yes, sir. Q. Did Mr. Thorn say what he wanted you to do? A. He told me he wanted me to help around the shingle room. Q. When you went back, then, at 12.30, whom did you see ? A. I was going up the stairs and I met Mr. Thorn. He told me to go up to the shingle room and ask for Mr. Decker and he would put me to work. Q. He told you to go and see Mr. Decker and he would give you work? A. Yes, sir. Q. Did you do that? A. Yes, sir; I went up and saw Mr. Decker, and he told meto wait until they started up and he would put me to work. I was waiting about there for about ten minutes when Mr. Decker and another man — I do not know his name — came to me. Mr. Decker said to the other man : ‘ This boy would make a good boy for the machine.’ Q. Mr. Decker said you would make a good boy for a machine? A. Yes, sir. Q. Were you put to work at a machine? A. He brought me over to the machine and put five or six pieces of shingle in, to stamp it. He asked me if I had ever worked on a machine .before. I told him no, I had never worked on a machine. Q. Mr. Decker put about five or six pieces of shingle in, to stamp it ? A. Yes, sir; and he asked me if I had ever worked on a machine. I told him I had not. Then he asked me if I would do it. I told him I would try to do it. ■ So I put in three or four pieces.' He stood there, and after that he went away. He did not come back for about half an hour. Q. How long did you work on that machine? A. I worked on it until about the next dinner-time, 12 o’clock. Q. All that afternoon of the 12th of May then; and went there the next morning, the 13th, and worked until about dinner-time? A. Yes, sir. Then I went home, got my dinner, came back and worked around until about one o’clock. Q. Then what happened ? A. Then he came up to me and said, ‘ Here are some old shingles to be re-stamped.’ Q. Mr. Decker said that? A. Yes, sir. And as I was putting one in, it didn’t catch right ; and I put my left hand in, leaned over, and it caused the bench to tumble over. My foot struck the treadle and the hammer came down..... Q. What was the operation of working the machine? A. You just put your foot on the treadle, and that slung the belt off, and the hammer would come down. Q. You were sitting on a bench? A. I was on a bench. Q. How high was this bench? A. About three feet, I guess. Q. When you were sitting on this bench,, would your feet touqh the floor or not? A. No, sir; they would not touch. Q. You could not reach the floor'with your feet; and, I understand, you had to keep one foot on this treadle ? Pressing the treadle with your foot released a belt, and this caused the operation of bringing down the hammer? A. Yes, sir. Q. You say that your hand was caught. State how the accident occurred. The machine was in the position indicated by the model here and you were sitting on the bench ? A. A piece of tin was here. I was pushing it and it slipped off like. I got my left hand in. It slipped in and went right over. My foot slipped. The floor was greasy. Q. The bench was loose? A. Yes, sir; it was kind of shaky. By the Court: — Does he mean the bench on which he was sitting? A. Yes, sir. Mr. Griffith [continuing] : — You leaned over to fix this, and in leaning over the bench tipped ? The Witness: — It tipped, and my foot caught in the treadle. That brought this down [indicating hammer]. By Mr. Griffith: — Q. Brought it down on your hand? A. Yes, sir. Q. That was the cause of the accident? A. Yes, sir. . . . Q. Did Mr. Thorn see you operate this machine? A. Yes, sir. He came around there the same afternoon that I was hired, and said I was getting along first-rate. Q. What instruction had you from anybody in regard to the dangers of operating this machine? A. I had no instruction. Q. You had no instruction whatever? A. No, sir. Q. You had told Mr. Thorn that you had never worked about machinery? A. Yes, sir. . . .” On cross-examination, the plaintiff testified, inter alia, as follows : “ Q. Did he [Mr. Decker] give you any caution as to how you were to be careful about it, in any way ? A. He just said to be careful. That was all. Q. What else did he say? He just told you to be careful ? A. Yes. Q. Did he give you no reason for it ? A. No ; he didn’t give me any reason. Q. Did he explain to you anything about it ? A. No, sir. . . . . Q. What hand did you make use of to place the shingles in the machine ? A. I use the right hand. Q. You have no occasion to use the left hand ? A. No, sir. Q. These pins are on the machine [indicating in model], they are the guides ? A. They were on the machine. I don’t know whether they were exactly there, where these are, or not. Q. And the tin here is the shape of the tins you were stamping ? This is the kind of a tin you were making, is it not ? A. I did not take notice of this little edge on it; I thought that that was straight. Q. You thought that that was straight? A. Yes, straight down. Q. You do not remember that [indicating the curved edge] ? A. No. Q. But this stamp work [indicating groove] was the same? A. Yes. Q. You will not say that that [again indicating curved edge] was not so; that it was not straight ? A. No, I would not say. Q. [Indicating notch in model.] Here was the place where you put your right hand in — under this notch ? A. It was a very small notch, though, not like that. Q. It was not as large as that ? A. No. Q. You say you never talked to anybody while' you were there ? A. No. Q. And nobody told you that you must pay attention to this at all ? A. No. Q. That it simply required your attention, to do it with your right hand ? A. Yes. Q. You received no such instructions ? A. No. Q. When the accident happened, it was your left hand that was hurt, was it not ? A. Yes, sir.” Defendant’s counsel moved for a non-suit, which was granted; and the court subsequently refused to take it off. The assignme?its of error specified the action of the court, I, in entering a non-suit; and, 2, in refusing to take it off. Warren G. Griffith, with him Thomas McFarland, for plaintiff in error. “ The plaintiff cannot be supposed, or assumed, to have accepted in advance a peril which he could not estimate, and the extent of which, for lack of experience, he could not have known. Where there is any doubt whether the employe was acquainted, or ought to have been acquainted, with the risk, the determination of the question is necessarily for the jury.” Rummell v. Dilworth, hi Pa. 343. “ In putting a person of immature years at work upon machinery which in some respects may be termed dangerous, an employer is bound to give the employe such instructions as will cause him to understand and fully appreciate the difficulties and dangers of his position, and the necessity there is for the exercise of care and caution.” Hickey v. Taaffe, 105 N. Y. 26; Grizzel v. Frost, 3 F. & F. 622; 2 Thompson on Negligence, 977. “ The obligation of the defendants would not necessarily be discharged by merely informing the boy that the employment itself, or a particular place or machine in the room in which he was set to work, was dangerous.” Coombs v. Cordage Co., 102 Mass. § 72. In Nagle v. R. R. 88 Pa. 35, there was no special duty owing to the infant. Besides, in that case the accident was the result of the boy’s own rash act. That case does not decide that, no matter how dangerous the employment, if the danger is apparent, one may put a boy of 14 at the work without incurring responsibility. Whether the employe has knowledge sufficient to enable him to appreciate the dangers of the employment or not, is a question for the jury. Hayden v. Mf’g Co., 29 Conn. 548; Rummell v. Dilworth, hi Pa. 343. The plaintiff was not a co-employee with the foreman. Smith on Master and Servant, 257; R. R. Co. v. Fort, 17 Wall. 553. Silas W. Pettit, with him John R. Read, for defendant in error.— The accident did not occur by reason of plaintiff’s ignorance of the proper working of the machine, but because of his unnecessarily doing an obviously dangerous thing, namely, putting his hand in under the hammer. He was therefore guilty of contributory negligence. Hickey v. Taaffe, 105 N. Y. 26. An employe, in accepting a service, the dangers of which are apparent, assumes the risks of the employment. DeGraff v. N. Y. Cent. Co., 76 N. Y. 125 ; Flower v. R. R. Co., 69 Pa. 210; Caldwell v. Brown, 53 Pa. 453 ; Coombs v. Cordage Co., 102 Mass. 572; Sullivan v. India Manufacturing Co., 113 Mass. 396. An employee is bound to furnish only such appliances as are reasonably safe and suitable. Ship Building Works v. Nuttall, 119 Pa. 149. There is no evidence whatever that the machine was in anyway defective; and that the floor of the factory was “ greasy ” was to be expected, and to require the employer to avoid this is evidently impracticable ; that the bench on which the boy sat was “ kind of shaky ” is entirely too indefinite an allegation to justify the finding from it of any fact. There was no evidence that the boy need have sat on the bench, or that the bench was furnished to him, and it is manifest that the height of the bench ought to be adapted for allowing the operative to work the treadle of the machine, and not for resting his feet on the floor. Feb. 11, 1889. [MAJORITY — Per Curiam,] Per Curiam, The court below entered a non-suit in this case, which is assigned as error. The plaintiff is a boy between fourteen and fifteen years of age; and obtained a situation with the defendant, who was proprietor of a' factory where tin shingles are made. These are pieces of tin stamped by machinery, and used for roofing purposes. The business at which the plaintiff was put, was to shove the tin plates under the stamping-machine. He was injured, the second day of his employment, by having his left hand caught under the stamping-machine, by which he lost two of his fingers. All machinery is dangerous, if not properly used. There was no danger in this particular machine that was not as obvious to a boy of fourteen as to an adult. He could see that, if he placed his hand under the stamp, it would be crushed. If boys are not allowed to use machinery until they have become accustomed to its use, it would be difficult for them to learn any useful trade or occupation by which to earn a livelihood. Judgment affirmed.