E.S. Higgins Carpet Co. v. O'Keefe

Citation79 F. 900
PartiesE. S. HIGGINS CARPET CO. v. O'KEEFE.
Decision Date08 April 1897
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Knevals & Perry, for plaintiff in error.

Atwater & Cruikshank, for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The action was brought to recover for personal injuries sustained by the plaintiff, upon the theory that the defendant, his employer, was guilty of negligence in providing an unsafe appliance for the use of the plaintiff.

It appeared upon the trial that the plaintiff, a boy then about 15 years old, entered the service of the defendant, and after working for several months in the room where a machine run by steam, known as a 'wool picker,' was in constant use, was assigned to the duty of feeding the machine. The machine had cogwheels at the side, in plain view, and they were not protected by any guards or covering. In feeding the machine, the wool was placed upon a band moving over and carried by rollers, the band and rollers being located in a box or trough having sides sufficiently high above the belt to inclose the requisite quantity of wool. The cogwheels were outside this trough, and at the further end, about two feet from the place where the operator stood in feeding the machine. On the second or third day after plaintiff had been assigned to the machine his right hand was caught in the cogwheels, and so severely crushed that amputation became necessary. The evidence for the plaintiff tended to show that he was feeding the machine at the time, and, while his attention was momentarily diverted by a boy who was near by, he got his hand between the cogwheels. The plaintiff testified: 'I told him to go away; and my feed was running out; and I took some wool that went through once, to run it through again; and I was watching this boy what he was doing; and my hand accidentally slipped and went in through the cogwheels. ' The evidence for the defendant tended to show that the plaintiff was cleaning the machine. He was aware that the rules of the defendant prohibited him from cleaning it while it was in motion.

Error is assigned of the refusal of the trial judge to instruct the jury to find a verdict for the defendant. We are of opinion that upon the facts the defendant was entitled to this instruction, and that there was no evidence to justify the leaving of the case to the jury.

The plaintiff, although a minor, was of sufficient age and experience to be fully aware that his hand would probably be crushed if it were caught between the cogwheels while the machine was in motion. He knew that the cogwheels were not guarded in any way, and testified that when he was assigned to feed the machine he was told by the foreman that he must look out for himself, and be careful. He entered upon and continued in his employment with full knowledge of the risks incident to feeding or working about the machine consequent upon the location and condition of the cogwheels and the absence of guards. If he had been an adult, it is plain that he would have had no cause of action. We think the circumstance that he was a minor is of no importance. The rules which govern actions for negligence in the case of children of tender years do not apply to minors who have attained years of discretion. In Hickey v. Taaffe, 105 N.Y. 26, 12 N.E. 286, the action was brought to recover for the injuries received by a minor of the age of 14 years while working upon a machine which was alleged to be of a dangerous character. She had worked upon the machine sufficiently long to become acquainted with and fully appreciate the danger to be apprehended from allowing her hand to be caught between its rollers. The court held that in accepting the work and entering upon the employment about this machine the plaintiff assumed the usual risks and perils of the employment, such as were incident to its use in its then condition, so far as such risks were apparent; and that being of an age to appreciate, and having full knowledge of the danger, and at the same time being competent to perform the duty demanded from her, the fact that she was a minor did not alter the general rule of law upon the subject of employes taking upon themselves the risks which are patent and incident to the employment. In Buckley v Manufacturing Co., 113 N.Y. 540, 21 N.E. 717, the action was brought against the...

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21 cases
  • St. Louis Cordage Co. v. Miller
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 12 Noviembre 1903
    ... ... Gibbons v. Navigation Co., 175 Mass. 212, 55 N.E ... 987; Higgins Carpet Co. v. O'Keefe, 79 F. 900, ... 25 C.C.A. 220; Epperson v. Postal ... ...
  • Obermeyer v. Logeman Chair Manufacturing Company
    • United States
    • Missouri Court of Appeals
    • 9 Julio 1906
    ...etc., R. R. Co. v. McBride, 135 U.S. 554; Choctaw & Oklahoma v. McDade, 191 U.S. 64; Miller v. Cordage Co., 126 F. 195; Higgins v. Carpet Co., 79 F. 900; Kneisley v. Pratt, 148 N.Y. 372; Sullivan Mfg. Co., 113 Mass. 396; Goodrich v. Washington Mills, 160 Mass. 234; O'Malloy v. Boston Gas, 1......
  • Depuy v. Chicago, Rock Island & Pacific Railway Company
    • United States
    • Kansas Court of Appeals
    • 19 Diciembre 1904
    ...Mass. 238, 33 N.E. 510; Glover v. Bolt Co., 153 Mo. 327, 55 S.W. 88; Gibbons v. Navigation Co., 175 Mass. 212, 55 N.E. 987; Carpet Co. v. O'Keefe, 79 F. 900, 25 C. A. 220; Epperson v. Cable Co., 155 Mo. 378, 50 S.W. 1050; Roberts v. Tel. Co., 166 Mo. 379, 66 S.W. 155; Steinhauser v. Spraul,......
  • Johnson v. Mammoth Vein Coal Co.
    • United States
    • Arkansas Supreme Court
    • 9 Noviembre 1908
    ... ... to the same effect in Higgins Carpet Co. v ... O'Keefe, 79 F. 900 ...          It ... ...
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