Swift & Co. v. Rutkowski

Mb. Justice Waterman deliveeed the opinion oe the Couet. This was an action for negligence. Appellee, a minor, while working for appellant, was seriously injured. The plaintiff recovered a judgment for $5,000. Upon the trial the court, at the instance of the plaintiff, instructed the jury as follows: “ Ho. 1. The court instructs the jury that it is necessary that it appear from the evidence that the plaintiff was in the exercise of ordinary care, before he can recover; but what is ordinary care, is a question for the jury to determine from all the facts and circumstances in evidence in the case. If you believe from the evidence that the plaintiff was a minor of the age of fourteen years, or thereabouts, at the time he was injured, you have the right to take that fact into consideration in determining whether or not he was exercising ordinary care. The law required of him such care only as could and would reasonably be expected from a person of his age, knowledge and experience, under all the circumstances of the case; that is, the degree of care wfiich he was required to exercise was ordinary care, in view of his age, knowledge and experience, and all the other facts and circumstances appearing from the evidence.” Ordinary care is such care as an ordinarily prudent adult person usually exercises. The definition as applied to a particular instance, means such care as an ordinarily prudent adult person would be likely to exercise under like circumstances. There is no such thing as the ordinary care of an infant. An infant is required to exercise such care as is to be expected from one of his age, intelligence and experience. The foregoing instruction, while not such as to warrant a reversal of the judgment, was not a correct statement of the law. “ Eo. 2. The court instructs the jury that it was the duty of the defendant to exercise reasonable care and diligence to employ a sufficient number of servants in and about the work in which the plaintiff was engaged, to render the performance of the work by the plaintiff reasonably safe. And if the jury believe from the evidence that the defendant failed to exercise such reasonable care and diligence, and negligently failed to employ a sufficient number of workmen so as to render the performance of the work by the plaintiff reasonably safe, and that by reason of its negligence, if any, in that respect, the plaintiff was injured, and that before and at the time of the injury he was exercising reasonable care and caution for his safety, as charged in the declaration, your verdict should be for the plaintiff.” There was no evidence warranting this instruction. The record does not show that the injury to the plaintiff was caused by a failure of the defendant to employ a sufficient number of men, but that the proximate cause of the accident was the swinging against the plaintiff of. the carcass of a slaughtered animal. In an action for negligence, it is the proximate cause upon which the suit must be based. The proximate cause of an event is that cause which, in natural and continuous sequence, without the interference of an efficient, independent, intervening cause, produces the result. A cause may be proximate, although the first of a series of acts resulting in an injury, if each of the subsequent acts be a natural and probable result of the first; illustrated by the famous Squibb case, 16 Am. & Eng. Ency. of Law, 436; Webb’s Pollock on Torts, 29-42. The evidence in this case was not sufficient to warrant a verdict upon the counts charging negligence in failing to employ a sufficient number of men. It will be well for counsel for appellee, upon another trial, to refrain from asking the jury to find the defendant guilty, because of alleged misconduct not charged in the declaration. The judgment of the Superior Court is reversed and remanded.