Neilson v. Hillside Coal & Iron Co.

Opinion by Mr. Justice Fell, The plaintiff, a boy under fourteen years of age, was employed by the defendant at its colliery, and at the time of his injury he was stationed at the head of a breaker to assist in the movement of cars. The loaded cars received from the mine were run to the dump or tipple, and after being emptied were drawn back and shifted to another track. An endless chain moved between the tracks and the power was communicated from this to the cars by means of a sling-chain some fifteen feet long, one end of which was hooked to the moving chain and the other to the front of the car. When a car had been drawn back the desired distance the chain was unhooked at both ends and carried back to be used in moving the next car. In order to detach the sling-chain it was necessary to stop the movement of the endless chain. When this was done and the sling-chain had become sufficiently slack it was unhooked from the car by the plaintiff and from the endless chain by another boy. The plaintiff in the performance of this work was required to stand on the front bumper of the car. At the time of the accident, because of the failure of the boy who had charge of the moving chain to stop it at the right time, the plaintiff was unable to unhook the sling-chain from the car with one hand while he held fast to the car with the other. In his effort to unfasten the chain he took hold of it with both hands and attempted to jerk it with one in order to get the necessary slack to unhook it with the other. As a consequence of this when the chain was loosened he fell in front of the car and was injured. There was testimony that the plaintiff had been employed as a slate picker, and that a month before the accident he had been directed to work on the cars; that his father on account of the dangerous character of this work had objected to his doing it; that he had been sent back to pick slate and remained at that work until two weeks before he was injured, when with [260] out his father’s knowledge he had again been sent by the foreman to the cars. The testimony was conflicting as to the dangerous character of the employment and whether the plaintiff had been informed of it and instructed how to do the work so as to avoid its danger. Two grounds of negligence were alleged upon the trial. The first was in placing a boy of the plaintiff’s age, without knowledge or experience, at a dangerous work without such instructions as would enable him to understand it and avoid its risk. The second was in placing an incompetent boy in charge of the machinery by which the motion of the endless chain was regulated. The case was submitted on the first ground only, the learned judge instructing the jury that there was not sufficient evidence to sustain a finding that the boy in charge of the machinery was incompetent. While upon its facts the case is a very close one, it could not have been properly withdrawn from the jury. Both the place and the character of the employment were dangerous. The plaintiff had not reached the age when capacity to see and appreciate danger is to be presumed. Under these circumstances it was the duty of the employer to see that he received such instructions as would inform him of the dangers which surrounded him and would enable him as far as practicable to avoid them. Whether this duty was performed was necessarily a question of fact: Rummel v. Dilworth, 131 Pa. 509; Kehler v. Schwenk, 151 Pa. 505. The only ground upon which the plaintiff under the evidence could be charged with contributory negligence was that he attempted to unhook the sling-chain when he found that the machinery had not been applied so as to slacken it, instead of jumping from the car at once. But this was to be determined in view of his knowledge and judg ment, and the surroundings. Without fault on his part he was suddenly placed in a position of peril, and he could not be held to the duty of quickly deciding and acting upon the wisest course to escape the threatened danger. Even an adult under the same circumstances would not be held to such a duty. We find no error whatever in the manner in which the case was submitted to the jury. The charge of the learned judge fully covered every point which was presented or arose at the trial, and the instructions were clear and adequate. The judgment is affirmed.