Buch v. Amory Mfg. Co.

Citation69 N.H. 257,44 A. 809
PartiesBUCH v. AMORY MFG. CO.
Decision Date11 March 1898
CourtSupreme Court of New Hampshire

Exceptions from Hilisboro county.

Action by Carl Buch against the Amory Manufacturing Company. From an order denying a motion to direct a verdict for defendant, defendant excepts. Judgment for defendant.

Case. Trial by Jury and verdict for the plaintiff. March 30, 1886, the plaintiff, then 8 years of age and unable to speak or understand English, was injured by the machinery in operation in the defendants' mill. The evidence tended to show that the plaintiff's brother, who was 13 years of age, was employed as a back boy in the mule-spinning room, and that at his request the plaintiff went into the room for the purpose of learning the work of a back boy. The elder brother had no authority to request or permit the plaintiff to go into the mill or to instruct him, unless it could be inferred from the fact testified to by him, that "he saw other boys taking their brothers to learn, as he understood from their motions." The plaintiff was in the mill for a day and a half, until the accident, openly assisting more or less in the work of the back boys. He testified that he was directed by a person not the overseer of the room, whom he saw "bossing" the other boys, to pick up some bobbins and put some waste in a box. There was evidence tending to show that Fulton, the overseer, who was in charge of and hired the back boys and other operatives in the room, passed in the alleys near the plaintiff, and that he was well acquainted with his help. He testified that he had no knowledge of the plaintiff's presence in the room until about two hours before the accident, when, aware that the boy was not an employe, he directed him to go out, and, thinking he might not understand English, took him to an operative who spoke the plaintiff's language, whom he told to send the plaintiff out. The plaintiff testified that Fulton spoke to him, and, as he understood, directed him to remove his vest, but that he did not understand he was ordered to leave. There was no evidence except Fulton's that the order was communicated to the plaintiff or understood by him. There was no evidence or claim that the machinery was improperly constructed or operated, or that it was out of repair. The plaintiff's hand was caught in a gearing which the back boys were instructed to avoid, but there was no evidence that the plaintiff was given any instruction or warning whatever. There was evidence tending to prove that boys under 13 were not employed in the room, and that the place and machinery were dangerous for a child of the plaintiff's age. Subject to exception, a motion that a verdict be directed for the defendants was denied.

Sullivan & Broderick and Burnham, Brown & Warren, for plaintiff.

David Cross, David A. Taggart, and Elijah M. Topliff, for defendants.

CARPENTER, C. J. On the evidence, the jury could not properly find that the plaintiff was upon the premises of the defendants with their consent or permission. Although there was evidence tending to show that other back boys had taken their brothers into the room for the purpose of instructing them in the business, there was no sufficient evidence that the fact that they did so was known to the defendants, and there was evidence that on the first occasion brought to their knowledge they objected. Upon this state of the evidence, a license by the defendants—whether material or immaterial—for the plaintiff's presence in the room could not legitimately be inferred. The plaintiff was a trespasser.

The defendants' machinery was in perfect order and properly managed. They were conducting their lawful business in a lawful way, and in the usual and ordinary manner. During the plaintiff's presence they made no change in the operation of their works or in their method of doing business. No immediate or active intervention on their part caused the injury. It resulted from the joint operation of the plaintiff's conduct and the ordinary and usual condition of the premises. Under these circumstances, an adult in full possession of his faculties, or an infant capable of exercising the measure of care necessary to protect himself from the dangers of the situation, whether he was on the premises by permission or as a trespasser, could not recover.

The plaintiff was an infant of 8 years. The particular circumstances of the accident—how or in what manner it happened that the plaintiff caught his hand in the gearing—are not disclosed by the case. It does not appear that any evidence was offered tending to show that he was Incapable of knowing the danger from putting his hand in contact with the gearing, or of exercising a measure of care sufficient to avoid the danger. Such an incapacity cannot be presumed. Stone v. Railroad Co., 115 N. Y. 104, 109-111, 21 N. E. 712; Hayes v. Norcross, 162 Mass. 546, 548, 39 N. E. 282; Mulligan v. Curtis, 100 Mass. 512, 514; Cosgrove v. Ogden, 49 N. Y. 255, 258; Kunz v. City of Troy, 104 N. Y. 344, 351, 10 N. E. 442; Lovett v. Railroad Co., 9 Allen, 557, 563.

An infant is bound to use the reason he possesses, and to exercise the degree of care and caution of which he is capable. If the plaintiff could, by the due exercise of his intellectual and physical powers, have avoided the injury, he is no more entitled to recover than an adult would be under the same circumstances. The burden was upon him, and the case might be disposed of upon the ground that he adduced no evidence tending to show that he had not sufficient reason and discretion to appreciate the particular risk of injury that he incurred and to avoid it. But it may be that evidence tending to show the plaintiff's incapacity was adduced, and that the case is silent on the subject, because this particular question was not made by the defendants.

Assuming, then, that the plaintiff was incapable either of appreciating the danger or of exercising the care necessary to avoid it, is he, upon the facts stated, entitled to recover? He was a trespasser in a place dangerous to children of his age. In the conduct of their business and management of their machinery the defendants were without fault. The only negligence charged upon, or attributed to, them is that, inasmuch as they could not make the plaintiff understand a command to leave the premises, and ought to have known that they could not, they did not forcibly eject him. Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child's injury, or indictable under the statute for its death. Pub. St. c. 278, § 8. "In dealing with cases which involve injuries to children, courts * * * have sometimes strangely confounded legal obligation with sentiments that are independent of law." Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155. "It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz. that no action arises without a broach of duty." 2...

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49 cases
  • Kambour v. Boston & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • March 4, 1913
    ...from injury is not recognized as a legal obligation, in the absence of contract or some special relation. Buch v. Company, 69 N. H. 257, 261, 44 Atl. 809, 76 Am. St. Rep. 163. But according to the view now generally accepted, when one takes action it is his duty to do what the ordinary man ......
  • Ouellette v. Blanchard
    • United States
    • New Hampshire Supreme Court
    • September 30, 1976
    ...our own jurisdiction are indicative of the accuracy of the above characterization of the common law in this field. In Buch v. Company, 69 N.H. 257, 44 A. 809 (1897), an eight-year-old boy had been brought into a textile mill by his thirteen-year-old brother to learn the brother's job. The b......
  • Nashville Lumber Co. v. Busbee
    • United States
    • Arkansas Supreme Court
    • June 5, 1911
    ...464; 26 L. R. A. (N. S.) 204; 4 Id. 804; 93 Ky. 408; 105 S.W. 211; 93 Mo. 422; 12 L. R. A. (O. S.) 216, 140 Pa.St. 475; 114 Pa.St. 321; 69 N.H. 257; Id. 577; 17 L. R. A. (N. S.) 23 L. R. A. 724; 102 Tenn. 211; 68 Wis. 271; 54 L. R. A. 315; 55 L. R. A. 622; 86 S.W. 65; 97 A.D. 477; 37 Wash. ......
  • Miller v. General Motors Corp.
    • United States
    • United States Appellate Court of Illinois
    • December 6, 1990
    ...was no more of an obligation to rescue the trespasser from personal injury than to rescue any other stranger. (Buch v. Amory Manufacturing Co. (1898), 69 N.H. 257, 44 A. 809; Carroll v. Spencer (1954), 204 Md. 387, 104 A.2d 628.) However, the Restatement (Second) of Torts and some courts ha......
  • Request a trial to view additional results
3 books & journal articles
  • When Torts Is More Than a Series of Accidents: Epstein on Torts
    • United States
    • Seattle University School of Law Seattle University Law Review No. 25-04, June 2002
    • Invalid date
    ...15. Id. at 40, reprinted in EPSTEIN, supra note 2, at 197. 16. See EPSTEIN, supra note 2, at 105-11. 17. Id. 18. Buch v. Amory Mfg .Co., 44 A. 809 (N.H. 19. Id., reprinted in EPSTEIN, supra note 2, at 550. 20. See, e.g., Richard Epstein, The Dunbar Lecture: Life Boats, Desert Islands, and t......
  • Deontology, governmental action, and the distributive exemption: how the trolley problem shapes the relationship between rights and policy.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 3, March - March 1998
    • March 1, 1998
    ...Foot's examples). It is worth noticing that the law has long recognized this distinction for its own purposes. See Buch v. Amory Mfg. Co., 44 A. 809, 811 (N.H. 1898) (denying a remedy where an eight-year-old plaintiffs hand was crushed in a machine that his 13-year-old brother, an employee,......
  • The inefficiency of the no-duty-to-rescue rule and a proposed 'similar risk' alternative.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 3, March - March 1998
    • March 1, 1998
    ...See Richard L. Hasen, The Efficient Duty to Rescue, 15 Int'l Rev. L. & Econ. 141, 147 (1995). (7) See, e.g., Buch v. Amory Mfg. Co., 44 A. 809, 810-11 (N.H. 1898) (distinguishing between moral duties to act and affirmative legal duties to act), overruled in part on other grounds by Ouel......

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