Fisher v. Delaware & Hudson Canal Co.

Opinion by Mr. Chiep Justice Stebbett, In view of the testimony, this ivas necessarily a case for the jury. It involved controlling questions of fact which were clearly for their exclusive consideration and determination. In March 1883, the plaintiff, then a lad under thirteen years of age, was badly injured while employed by defendant company in picking slate from the top of loaded coal cars. At that time, defendant and the New York, L'ake Erie and West* ern Railway Co. loaded their coal into separate cars, owned by the latter company, at a collection of sehutes known as the “ Erie pockets. ” From four to six hundred cars, daily, were run by gravity to the scale, a short distance below said “ pockets ”; and, after being weighed, were dropped down the track to a point where they were made up into trains for transportation to market. On the way down, it was necessary to separate the cars loaded for defendant from those of the other company. As the cars were being thus moved and made up into separate trains, the plaintiff and other boys, employed by defendant company, were engaged on the top of the loaded cars picking out the slate. While plaintiff was thus at work, in company with an older lad, on the second car from the rear of one of the sections, another car came down the track, struck "the cars in front and suddenly drove them forward. When the collision occurred, the boys were in the stooping position required by their work, and plaintiff, losing his balance, caught hold of his companion, but, being unable to retain his position, fell between the cars and sustained the injuries for which, on attaining his majority, he brought this suit. It was claimed that said injuries were the result of defendant company’s negligence, in these particulars: 1st. In placing him in a position so hazardous; 2. In not cautioning him or explaining to him the dangers incident to his employment, and, 3. In not providing men or means to control the cars in their descent from the sehutes to the point where the trains were made up. As remarked by the learned trial judge, there was no question of contributory negligence in the case. The only questions [383] were the duty which the defendant company, in the circumstances, owed to the plaintiff, and whether it neglected to perform that duty, to his personal injury and damage, etc. It is not our purpose to either review or summarize the testimony bearing on these questions. It is sufficient to say that it tended to sustain the allegations of negligence. As described by some of the witnesses, the employment was a very dangerous one for boys of plaintiff’s age, and was so known to be to his employer. One of the witnesses, Alanson Beard, testified that shortly before plaintiff was injured, Mr. Fitch, defendant company’s superintendent of the work, sent for him, “ and he told me to go down and take charge of the boys that were picking slate. . . . and 1 told him that I didn’t think it was a fit place for the boys, and he said: Never mind, you go right along.” When asked if there was anything said about the age of the boys, he answered: “ No. He said nothing to me, only told me to go right along. ” On behalf of defendant, there was testimony tending to show that the boys were informed as to the danger incident to their employment and cautioned to be careful, etc.; but, to some extent at least, that was denied. While, as is usual in such cases, there was some conflicting as well as rebutting testimony, the evidence was clearly sufficient to carry the case to the jury on the questions of fact contended for by plaintiff. It was fairly submitted, in a clear and adequate charge, in which there appears to be no error of which the defendant can justly complain. The verdict, in plaintiff’s favor, necessarily implies that the jury was satisfied that defendant company’s negligence was the proximate cause of plaintiff’s injury. The assignments of error are two in number. One of these is the refusal to charge as requested in defendant’s first point, viz.: “ The evidence fails to show any negligence on the part of the defendants, and therefore the plaintiff cannot recover.” For reasons already suggested, this point was rightly refused. It would have been grave error to have done otherwise. The other is the refusal to charge as requested in defendant’s second point, viz.: “ Under all the evidence the verdict must be for the defendant.” For same reasons, there was no error in refusing this point. It could not have been affirmed without wholly ignoring the evidence tending to prove that the defendant company was [384] negligent in the performance of the duty which, in the circumstances disclosed by the testimony, it owed to the plaintiff. As to the duty referred to, the instructions of the learned judge were full and adequate. Among other things, he said, in his general charge: “ There is another duty which the employer owes to a child or infant, and that is to inform him of the dangers connected with the services in which he is employed. If that information, taken in connection with what the employee must know from his personal and constant observation, is sufficient to enable him to understand clearly the dangers to which he is exposed, then that duty is discharged on the part of the employer.” After referring to the evidence, as to the warning alleged to have been given to plaintiff by defendant company, the learned judge said to the jury it was “ of such a character that it would be necessary to leave it to you to determine whether he was sufficiently warned of the danger of the employment in which he was engaged.” Again, in affirming plaintiff’s second point, — requesting him to charge, “ It is negligence, for which the employer is responsible, to employ and place in a hazardous position a boy whose appearance indicates that he lacks the intelligence, prudence and foresight which will enable him to comprehend the dangers of his employment,” — he said, if the circumstances are such that the employer must perceive that the boy has not the capacity to realize the dangers to which he is exposed, he ought not to be put in that employment.” These instructions, except so far as they may be involved in the refusal to affirm the general propositions submitted by defendant, are not complained of. They are in harmony with our cases, including Strawbridge v. Bradford, 128 Pa. 200; Rummell v. Dilworth, 181 Pa. 509; Zurn v. Tetlow, 134 Pa. 213; Ross v. Walker, 139 Pa. 42; Kehler v. Schwenk, 151 Pa. 505. In Rummell v. Dilworth it was held that in the case of young employees, it is the duty of employers 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 in the course of their emyloyment they should not be exposed. This principle is quoted with approbation by our Brother Green in Kehler v. Schwenk, supra. Guided by the instructions that were properly given as to the law, applicable to the facts which the evidence tended to [385] prove, it was the special province of the jury to ascertain the facts, and render their verdict accordingly. There appears to be nothing in the record to indicate that this was not properly done, or that there was any error in the trial that would justify a reversal of the judgment. Judgment affirmed.