Rummel v. Dilworth, Porter & Co.

[519] NO. 90. Opinion, Me. Justice Williams: This case was first brought into this court several years ago by the plaintiff, against whom a compulsory nonsuit had been entered in the court below. The judgment of nonsuit was reversed, and the case sent back for trial: Rummel v. Dilworth, 111 Pa. 343. On the next trial a verdict was rendered in favor of the plaintiff. The pending writ of error was sued out by the defendants, who- complain, not that the court below failed to follow the rule laid down by this court, but that the rule should be reconsidered and modified. We were so much impressed by the importance of the subject, and so desirous to correct any error into which we might have fallen, that a re-argument was ordered by this court of its own motion. That re-argument has taken place, and we have had the benefit of a dear and able discussion of the questions on which we are asked to modify the opinion expressed when the case was here before. These questions are two in number: 1. Was not the danger of injury from the cog-wheels in which the plaintiff’s leg was crushed, a danger incident to his employment, the risk from ■which he assumed when he entered upon his work ? 2. If the first question is not answered affirmatively, then was not the injury received in the performance of an act which it was not his duty to perform, and the risk from which was for that reason self-imposed? We will consider these questions in their order. The general rule that a workman assumes the risks incident to his employment when he enters upon it is well settled, but its application is subject to certain qualifications. He certainly has the right to expect his employer to provide machinery, tools, and appliances that are reasonably safe for his use, and he assumes no risks growing out of their defective character, unless he has been fully advised that they are defective and dangerous. He has the right to suppose that his employer has provided such guards and means of protection from injury, in the use of the machinery, tools, and appliances, as are usual and reasonably necessary for his safety; and he cannot be held to assume the risks attendant on their absence, unless such absence is apparent, or his attention has been called to it. If [520] the business is one with which he is not familiar, he has a right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. 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 dutjr in such cases to warn and instruct grows naturally out of the ignorance or inexperience of the employee, and it does not extend to those who are of mature years, and who are familiar with the employment and its risks. In the present case, Rummel was a lad of about seventeen years, with very little acquaintance with the business or its dangers. He went into the employ of the defendants on Tuesday. He left on Friday of the same week, with a leg so crushed that immediate amputation was necessary. He was employed as a “ drag-down,” but was hurt while performing the duties of a “roller,” in opening and closing the gate between the first and second pairs of rollers. The cog-wheels by which the rollers were moved were covered along the whole length of the train, except at the point over which Rummel had to reach to open and close the gate. If they had been covered at that point the accident could not have happened. In view of the youth and want of experience in the business on the part of Rummel, it was necessarily a question for the jury whether his employer had sufficiently warned and instructed him about the dangers of the employment, and how to avoid them, or had done all that was reasonably necessary to protect him from injury. This is what is meant by the passage from the opinion of this court found in Rummel v. Dilworth, 111 Pa. 343, to which exception is. taken. It was not meant to assert that the dangerous character of a piece of machinery, a bridge, or an effort to cross a railroad track in front of a moving train, should be determined by the result of an experiment in each case, but that a workman must know the dangers of his employment by actual experience in the employment, or by the instructions-of his employer, before he can be held to have assumed them. In other words, it is not just to the employee to hold him to have assumed dan [521] gers of which he has no knowledge by experience in the business, or by the warning and instruction of his employer. Such risks cannot be estimated, because they are not known to exist, or, because their real character and extent can only be known by familiarity with the business, or information from one who has such familiarity. The court could not declare, therefore, as matter of law, on the facts of this case, that the danger from which Itummel suffered was one the risk of which he assumed when he accepted employment as a drag-down. Our second question grows out of the answers complained of in the fifth and sixth assignments of error. As we have already had occasion to remark, Hummel was employed as a drag-down.' He was hurt while in the discharge of the duties of a roller, and the court was asked to say that, in attempting that for which he was not employed, he voluntarily assumed the risk incident to his unnecessary undertaking. If the facts presented a case such as is thus assumed, it may be that the rule invoked should have been given to the jury; but the learned judge of the court below well said that “ the scope of duty within which a servant is entitled to protection is to be defined by what he was employed to perform, and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position.” If, in the absence of the roller, he was permitted and expected to open the gate in case the billet stuck fast, he was entitled to instruction and protection in the same manner as though he had been employed as a roller. Whether he was permitted and expected to manage the gates in the absence of the roller was a question of fact. If the jury found that he was, then the defendants were not entitled to the instruction asked for in their third point, and the answer complained of was right. On examination of the whole case, we are of opinion that the judgment must be affirmed. no. 91. Opinion, Me. Justice Williams: The judgment in this case is affirmed. Judgment affirmed.