Chesko v. Delaware & Hudson Co.

• Citation: 218 F. 804
• Decision Date: 04 December 1914
• Docket Number: 1843.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: CHESKO et al. v. DELAWARE & HUDSON CO.

218 F. 804

CHESKO et al. v. DELAWARE & HUDSON CO.

No. 1843.

United States Court of Appeals, Third Circuit.

December 4, 1914

Welles & Torrey, of Scranton, Pa., for plaintiff in error.

Joseph O'Brien, John P. Kelly, William J. Fitzgerald, and James F. Bell, all of Scranton, Pa., for defendants in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

This suit was brought by Thomas Chesko, in his own right, and as the father and next friend of Alvin Chesko, a minor, citizens of Pennsylvania, against the Delaware & Hudson Company, a corporate citizen of New York. It was for damages suffered by said minor coming in contract with the revolving cogwheels of a machine in the machine shop of defendant. At the trial the court denied defendant's request for binding instructions. The jury found verdicts for the plaintiff in his own right and in right of the boy. Judgment being entered thereon, defendant sued out this writ.

The question here involved, as stated by the defendant, is:

'Does defendant, under the facts in this case, owning and operating a machine shop located on a much-traveled thoroughfare, owe any duty to protect an infant trespassing upon the property, by reason of the operation of dangerous machinery?'

The evidence tended to show that the defendant had a machine shop located about six feet back from a much-traveled street in the city of Scranton. Its moving machinery was visible from the sidewalk through a wide double door. This door was kept open during warm weather, and there was no guard, rail, or screen to prevent the entry of children. The proofs showed that at different times preceding the accident children were permitted to enter through this open door. On the day of the accident plaintiff's son, six years old, Alvin, entered this open door in company with an older lad, and while watching the men at work Alvin's hand was caught by an unguarded revolving cogwheel and injured.

The pleadings alleged it was--

'the duty of the defendant to maintain said machinery so that it might not attract to the same children who might be lawfully passing along said street; to refrain from inviting permitting, allowing, or suffering children as aforesaid to come at or near said machinery; to maintain said machinery in such condition that it might not injure any person who might be lawfully near the same, and to properly guard said machinery; and to guard the gates, doorways, and entrances to said machine shop, where said dangerous machinery was, in order that children of tender years, like said plaintiff, Alvin Chesko, could not get near, about, upon, and around said machinery.'

It will thus be seen that the legal question involved in this case is whether, under the situation here disclosed, it was the duty of the defendant--

'to guard the gates, doorways, and entrances to said machine shop, where said dangerous machinery was, in order that children of tender years * * * could not get near, about, upon, and around said machinery.'

In that respect the court below charged:

'It is but to be expected that a place such as that of the defendant would prove interesting and attractive to children, and, taking into consideration the location and exposure, I will ask you to determine whether the defendant used and exercised such judgment and care under the circumstances as a person of ordinary prudence would use in warding off children and guarding them against the danger that the allurement of the place might offer.'

The verdict settled those questions against the defendant. Was the court in error in refusing defendant's point that: 'Under all the evidence in this case, the plaintiff, Alvin Chesko, was a trespasser upon defendant's property, and, there being no evidence that the defendant intentionally or wantonly injured him, your verdict must be for the defendant.'

As the injured lad was but six years old at the time, we may say, as we did in Snare & Triest Co. v. Friedman, 169 F. 1, 8, 94 C.C.A. 369, 376 (40 L.R.A. (N.S.) 367);

'In the case before us it is not necessary to consider at what age an infant may be of such discretion as to be responsible in a case like the present for contributory negligence, or for conduct which, in case of sufficient discretion,...