Rodgers v. Lees

• Citation: 21 A. 399,140 Pa. 475
• Decision Date: 09 March 1891
• Docket Number: 400
• Parties: MARY RODGERS v. JOSEPH LEES ET AL
• Court: United States State Supreme Court of Pennsylvania

21 A. 399

140 Pa. 475

MARY RODGERS v. JOSEPH LEES ET AL

No. 400

Supreme Court of Pennsylvania

March 9, 1891

Argued February 2, 1891

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.

No. 400 January Term 1890, Sup. Ct.; court below, No. 165 October Term 1889, C.P.

On September 23, 1889, Mary Rodgers brought trespass against Joseph and John S. Lees, trading under the firm name of James Lees & Sons, to recover for alleged negligence of the defendants, causing the death of the plaintiff's minor son. The defendants pleaded not guilty.

At the trial on March 19, 1890, the plaintiff presented testimony tending to establish the following facts:

The defendants owned and operated a woolen mill at Bridgeport Montgomery county, situated at the corner of Fourth and Coates streets. The latter street was open to the public, but was used little, if at all, by any one not connected with the defendants' mill. Upon the Coates street front of their mill, the defendants maintained certain apparatus used for hoisting materials to the upper floors of the building from the street, and lowering their manufactured product into the street when ready for shipment. The apparatus consisted of a covered projection from the top of the fifth story, in which were placed a drum and a system of pulleys, and from which a wire rope or cable descended to the ground, being wound up and unwound by steam power. To keep the cable taut while descending without a load, an iron ball, eight or ten inches in diameter, was fastened at the lower end of it. Below the ball was a chain about a foot long, to which were appended two hooks used for attaching the cable to the goods to be raised or lowered. When the cable was let down, the ball rested on the street about two and one half feet from the building line of the mill.

The machinery was controlled by an iron rod on the inside of the mill, running from the ground floor to the top, and so arranged that, by pulling the rod, a person on any floor could start and stop the machinery, cause the cable to ascend or descend, or cause the ball and hooks to stop at any of the floors. Several witnesses testified for the plaintiff that the machinery was so arranged as to "knock off" and automatically stop, whenever the ball reached either the top or the bottom of the course through which it moved, but that sometimes the arrangement for effecting the automatic stoppage was out of order, and then the cable, after once being started, would keep in motion, successively ascending and descending until some one in the mill would stop it by means of the controlling rod.

On the evening of June 7, 1889, between six and seven o'clock the plaintiff's son, Daniel Rodgers, about six years old while passing along Coates street, met John Kinney, a boy about four years older, in front of the defendants' mill. At the moment of their meeting, the ball was descending and near the ground. Rodgers said to Kinney, "Hello, Kinney I bet I can go up higher on the ball than you." Kinney remonstrated, telling Rodgers that he would fall; but when the ball reached the ground, Rodgers got upon it, putting his legs around it, holding to the rope, and the ball starting up again, he was carried up with it. After it started he tried to get off, but was unable to do so at once, and was carried to the level of the third story of the mill, when his hold loosened and he fell to the ground, the fall resulting in his death. Kinney testified that he thought the hook underneath the ball caught in Rodgers' clothing, and prevented him from getting off before the ball got high above the ground.

Testimony for the defendants tended to show that the hoist was in use a few moments before the accident, but had been stopped, leaving the ball hanging at the level of the third story, and that the men who had been using it had gone away, after closing up the doors in the upper stories; that the hoist was a machine of a standard make, such as was used in other mills, and that it was arranged with reference to the street in the customary manner; that the automatic attachment for reversing the motion was so arranged that it could be adjusted to operate either when the ball was at the top or at the bottom, but could not be adjusted at one time so as to reverse both at the top and at the bottom. The witnesses, who testified that the ball had been stopped, stated that they were unable to account for its being in motion at the time of the accident, but that somebody must have started it, as when it was once brought to a dead stop the machinery could not start of itself.

At the close of the testimony, the court, SWARTZ, P.J., charged the jury in part as follows:

First, was there negligence on the part of the defendants? The hoisting machine was put into mill No. 6. I charge you that it was not negligence to construct this hoisting apparatus in mill No. 6. The uncontradicted evidence shows that it is an apparatus that is in common use, and is approved by the experience of those who have knowledge of its working, and therefore, when these defendants availed themselves of the use of this machinery, they were not guilty of any negligence. If they are guilty of any negligence in this case it is not by reason of the construction of the machine, and not by reason of placing the machine and its appliances where they did place it. If there is any negligence in this case, it must be in the operation of the machine, without giving it proper attention or supervision.

What was the character of the operation of this machinery, the traveling of this cable, upon the seventh day of June last, when Daniel Rodgers came there, and, as it is said, meddled with the cable? According to the evidence of his companion, the ball was coming down. He says it was a few feet from the ground when he first saw it, and that it then came down, and Daniel Rodgers sat upon the ball; that then it rested for a minute, I think, as he described it, and then began to ascend. The little boy that was killed remarked, "I will bet that I can ride up higher on this ball than you can." You will say from this testimony whether this cable was not at this time, when the boy came there, coming down and again ascending, after the ball struck the ground. You will take all the testimony in this case in determining what was the manner in which the cable operated at that time. The defendants were bound to have regard to the thoughtless tastes and traits of childhood. You will say whether the defendants, as prudent and cautious men, ought to have foreseen that there was a reasonable probability that children of tender years, unable to apprehend danger or to avoid it, by reason of their incapacity, would meddle to their injury with this hoisting machine, if the cable were suffered to run slowly to the alley and then reverse itself and return in the same manner. If it was their duty to have foreseen this, then you will say whether they were negligent, if they suffered the apparatus to be thus operated without being attended by themselves or their employees who were in charge of the machine.

It matters not how careful the defendants may have been in their instructions to their employees. If those entrusted with the running of the machine failed to regard the instructions and were negligent in the operation of the machinery, such negligence would be chargeable against the defendants. If you find that this cable was descending and by its own motion returning, when the little boy was brought in contact with it, you will say whether that was dangerous to children that might meddle with the machinery. Was it the duty of these defendants to foresee that an injury might happen to children who would meddle with it? If you find it was their duty to foresee this, and that this cable was traveling down and then ascending again, you will say whether they ought to have attended it, or whether some one in their employ ought to have had supervision over it, so that if it was dangerous and likely to do injury, those brought in contact with it, such as little children, might be protected.

If you find that this ought to have been done, your next inquiry will be, did they give it that supervision and attention? In order to ascertain this, you will scrutinize carefully all the testimony in this case. The defendants say that they were not responsible for the descending of this ball and its ascending; that through their employees they guarded it carefully; that, when they were through in their use of it, the employees at the third door of the building put on the brake and fastened it firmly; and that, therefore, even if you should find that it was negligence to have it run down and then return again, without the supervision of any one, they are not accountable for the failure to have some one there; that they did all that could be reasonably expected of them.

I charge you that even if you should find that it was their duty to have supervision over this machine, as it descended upon the ground and ascended again of its own motion, they would not be responsible if they exercised proper supervision when the cable had this motion; and if they, through their employees, fastened it, as the defendants' witnesses swear it was fastened, you will say whether that was not all that could be done to protect it and keep it safely. If it was locked, or if the brake was put on, the testimony is that it could not be started without an application to the rod that ran from one end of the building to the top; that a bale of a thousand pounds or more might hang attached to it, and still it would remain fixed unless power were applied to the rod connected with the machinery. You will say, therefore, if they put this brake on through their employees, whether t...