Kehler v. Schwenk

Opinion by Mr. Justice Green, First and third assignments of error. The witnesses Milton Haas and Daniel Specht, had quit-e considerable experience in driving mules on the dirt bank of the defendant, for the purpose of dumping coal dirt over the bank at the end of the dump. Haas, after saying he was employed by defendant at the colliery in question and was on the dirt bank the day of the accident, testified: “ I was acquainted with the construction of the dump car and the attachment for the mules.” He then described fully the whole construction of the car and the attachment. He said further: “ I drove a mule on this dirt bank. Sometimes it was part of my work to unhitch the mule. There was a grade at the end of the dirt bank where the cars were dumped. It was necessary to make the mule go on a trot in order to get the dumper up to the head block. If the mule wasn’t driven pretty rapidly the dumper wouldn’t go up. ... It was. necessary to unhitch the mule before the dumper arrived at the end of the bank because the mule couldn’t go clear out or he would have went head over heels down the bank. The person driving the mules, in order to unhitch, was obliged to go in front and take hold of the chain with one hand, and with the other hand unhook the spreader. Whenever I unhooked it I had to get right in front of it. I was obliged to get in front of the car between the rails. The ear was moving rapidly while I was doing that because the nralb had to start on a trot.” The witness further said: “ I knew Daniel Kohler’s size at that time. He was a small boy for his age. Q. What was his physical strength for a boy his age ? A. I don’t know that; he was very light—light frame.” — 514 — Such being the preliminary testimony of the witness, counsel for plaintiff proposed to ask him whether a boy of the size and strength of the plaintiff could have unhitched the mule from the car in any other manner than that described by the witness. This proposed proof was objected to by the defendant’s counsel, but the court overruled the objection and admitted the offer. Whereupon the question was put to the witness who answered: I don’t think he could.” It is evident that the subject-matter of this testimony was of serious importance to the plaintiff’s case. A favorable answer would relieve him from the charge of contributory negligence, and it would also tend to support his allegation that he did what he was obliged to do in order to perform the service he was set to do by the plaintiff. The witness had shown ample knowledge of the whole situation, he knew what had to be done from his personal experience, the information to be communicated by the answer was something which the jury ought to know, to dispose of the case intelligently. It was not a mere opinion of the witness that was sought, but his actual knowledge of what had to be done by the plaintiff, in order to carry out his employer’s directions and perform the duty assigned to him. We have no doubt it was entirely competent to make this proof. In fact we do not see how the fact as to the character of the plaintiff’s service, and the actual things he was obliged to do could be proved in any other way. The same remarks are true in a still more eminent degree of the testimony of Daniel Specht. He also developed a most practical and actual knowledge as to what was necessary to be done in the performance of the plaintiff’s service. He said it was absolutely necessary for the plaintiff to get hr between the rails in order to unhitch the chain and he further said that the plaintiff had 2ieither size nor strength to unhook the mule while outside the rails. We think the offer of proof of this wit2iess also was properly received and we therefore dis2niss the first and third assignments of error. Second assignment of error. The condition of the track upon which the plaintiff was obliged to perform his duties was, necessarily, an élement in the question of the defendant’s negligence in furnishing the appliances which the plaintiff was obliged to use. We do not see how that feature of the case — 515 — can be eliminated from the inquiry. We said as much as this in the former hearing of this case. The plaintiff, testifying as to the facts of the injury, said: “ I fell in the track and one wheel of the dumper run over me; I was trying to unhook the mule and I fell; I was between the rails in front of the car in the act of unhitching the mule.” He also said: “ After the mule turned out that way I was laying right under here; I don’t know how I happened to fall, I guess I stumbled over something; I was running in front of the car and I had hold of this chain and I fell between the wheels on the track.” And again: “ Certainly, it was necessary to get hold of the chain so you would be right there, so you couldn’t miss it; you had to run, had to have something to steady yourself, because it was full of holes on the outside and inside of the rail. We used to have hold of this stretcher with one hand and with the other hand we unhooked the chain as soon as we had slack enough.” There was some evidence that it was the duty of the persons running the dumper to keep the track in order, though all of these boys that were engaged in this service, Haas, Specht and the plaintiff, testified that they were not instructed to do so. But if it were clearly proved that such was the rule at this place, the plaintiff could not possibly be charged with the consequences of not observing it because he had only been put upon this service the day before, and he certainly could not be held reponsible for any breach of duty in this respect. Now if the track had rotten ties, loose rails and projecting ends of ties, with holes in the ground between the ties both inside and outside the rails, it was in such a condition of non-repair as would most probably and naturally occasion the stumbling of any person, old or young, while engaged in the performance of so hazardous a service. Under this state of the testimony, the jury would have been quite at liberty to infer that the condition of the track was the occasion of the boy’s falling. It was therefore proper, in our judgment, to admit evidence of the condition of the track at the time of the accident, and we dismiss the second specification of error. Fourth and fifth assignments. We are clearly of opinion that the testimony of McEliece was properly admitted. It related to the very subject both of the general use of this kind of a dumper and hitch, and the existence of the defects com — 516 — plained of by the plaintiff in the structure itself. This is the very essence of the plaintiff’s case. The witness had worked at several different collieries and said he had never seen a contrivance of this kind in use. He also described the kind that was in use at those collieries, and showed that they were entirely free from the arrangement which constituted the dangerous character of the one in use at the defendant’s colliery. It matters not that other persons testified that there were other collieries at which this same kind of dumper was used. The whole of the testimony on both sides raised a question of fact as to the generality of the use of either kind, and especially as to the dangerous character of the one in use at this colliery, and the decision of that question was for the jury. We think the remaining assignments of error can be considered together. The case was tried upon an allegation by the plaintiff that the defendant was guilty of culpable negligence in putting him at work upon a service, dangerous in its character, with an appliance which was entirely insufficient for his protection, and was not in general use for such a purpose, and he being at the time too young in years and too weak in body to be put upon such a service, and further that the dangers were not pointed out to him and he was not instructed how to avoid them. The cause was most carefully and, as we think, correctly tried by the learned court below, with all due cautions to the jury, and giving the defendant the full benefit of all the restrictions and limitations upon the liability of an employer in an action by an employee. The jury were instructed that if the plaintiff had sufficient judgment and sense to know that the employment was dangerous, and nevertheless voluntarily engaged in it, he was guilty of contributory negligence, and could not recover notwithstanding his youth. The court also said to the jury that if the plaintiff was of such tender years or did not have sufficient sense to appreciate the danger, and know better than to engage in so dangerous a service, then he would not be guilty of contributory negligence. On the trial it was clearly proved, and not contradicted, that the plaintiff was a little past fourteen years of age at the time of the accident, and abundant proof was given that he was of small size for his age and physically weak. It was also fully proved, and not contradicted, that he was employed to — 517 — do service as a slate picker, and entered upon and performed that service, but that the day before the accident he was directed by the agents of the defendant to go out upon the dirt heap and drive the dumping car. It was proved by the plaintiff and his father, that when he was directed to do this work both he and his father objected to it, the plaintiff complaining that he was sore and stiff all over and that the work was too heavy for him. It was also proved by the plaintiff, and not contradicted, that he had no previous experience at driving a dump car, until he was set to work the day before the accident, and that no one explained to him the danger of the service, or gave him any instruction how to perform it, or showed him how to avoid the danger. The character of the service and the manner in which it was necessary to perform it, and the necessity of the plaintiff’s getting in between the rails of the track while the car was running in order to unhitch the spreader, because of his inferior size and strength, was fully proved, and if there was any opposing testimony on this subject a question of fact arose which it was necessary to submit to the jury. We are constrained to say that, under all the testimony, the jury were entirely justified in finding that the character of the service which the plaintiff was required to perform was highly dangerous for any one, and especially so for the plaintiff on account of his youth and physical weakness. There was ample proof that there was another mode of constructing the attachment, by means of which the spreader would detach itself the moment the mule turned about in order to let the dumper run on to the end of the track, and that dumpers of that character were in use at quite a number of collieries named by the witnesses, who described them. On the other hand proof was given by the defendant that the appliance used at the defendant’s colliery, was the same in structure as those used at a number of other collieries named by the witnesses, and thus a question of fact was raised as to the generality of the use of the kind of dumper which was employed at the defendant’s colliery. This question also was referred to the jury, with the instruction, that if they found that this method of attachment, was in use by people engaged in the business, the defendants were not guilty of negligence in using it. It seems to us that all the rights of the defendants as employers of the plaintiff, were carefully — 518 — guarded by the learned court below in the general charge and in the answers to points, and the simple question remaining is, whether upon the combination of facts constituting the plaintiff’s case as set out in the narr, there can be a recovery. Upon this question we think the case comes within several of our decisions which authorize a recovery in such circum stances. Thus in the case of Patterson v. Pittsburgh & Connelsvile R. R. Co., 76 Pa. 389, we said: “ It is true the master is not responsible for accidents occurring to his servant from the ordinary risks and dangers which are incident to the business in which he is engaged; for in such case the contract is presumed to be made with reference to such risks. But on the other hand where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. .... The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when, in the discharge of that duty, he is damaged through the neglect of the master, it is but meet he should be recompensed. The general principle, as recognized by our own cases, inter alia, Caldwell v. Brown, 3 P. F. Smith, 453, and Frazier v. Penna. Railroad Company, 2 Wright, 104, is, that the employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this he is liable for any damages flowing from such neglect of duty. . . . But where the servant, in obedience to the requirements of the master, incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill the rule is different. In such case the master is liable for a resulting accident.” The principle of this decision, would exonerate the plaintiff in the present case, from a charge of contributory, negligence in engaging in a palpably dangerous service, even if he were a full grown adult, because there was other testimony to the effect that the appliance might be used with safety although apparently dangerous, but when his youth and physical weakness are considered, and the fact that he was ordered to do this work, and that he objected to doing it, and went reluctantly — 519 — to the service, it cannot be doubted that he is entirely free from any charge of contributory negligence and also that the master became subject to all the risk of an accident. He was but little more than a child either in years or in strength, and 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. On the contrary the very fact of the plaintiff’s youth and weakness is one of the elements that go to make up the charge of negligence on the part of the defendant in putting such a person upon such a service. It seems to us the master, in such circumstances, and not the servant, must be held to have assumed the risks of the service. The case of Rummel v. Dilworth, 131 Pa. 509, goes much farther than is necessary to sustain the plaintiff’s action. There the plaintiff was seventeen years of age and the service assigned to him was not manifestly dangerous on account of the manner in which it had to be performed. The danger arose from the absence of protective appliances which, had they been present, would have prevented the accident., The plaintiff was employed as a drag-down, but of his own accord, was acting as a roller, when he received his injury, and he therefore assumed the risks of the latter service. But we held that if he was permitted to act as a roller, and that was for the jury, “ he was entitled to instruction and protection in the same manner as though he had been employed as a roller.” We also held as to every workman “ that 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 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.” We held also that “ In the ease of young persons it is the — 520 — 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 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.” It will be seen from this decision, that in actions by young persons against their employers, we recognize as sources of liability, the inexperience of the servant, and the want of specific instruction as to the dangers of the service, and we suspend the rule that the servant assumes the risk of the service when he has not knowledge by experience, or by specific instruction. All these sources of liability existed in the present case. The plaintiff was very young, he had no knowledge by experience or by instruction as to the dangers of the service, the service was in reality highly dangerous, the plaintiff was not employed to engage in this particular service but in another, and was. urged into it against his will, the appliance from the use of which the injury arose was only in partial use, and the testimony disclosed a perfectly simple device, in extensive use, which practically removed all danger. , The most of these facts were proved without contradiction and ample testimony was given as to all of them. In such circumstances the case was clearly for the jury, an d, as it seems to us, the verdict was entirely justified by the evidence. We are'of opinion that there was no error in the charge nor in the answers to points and therefore think the judgment should be affirmed. Judgment affirmed.