Dougherty v. Dobson
| Decision Date | 05 March 1906 |
| Docket Number | 132 |
| Citation | 214 Pa. 252,63 A. 748 |
| Parties | Dougherty v. Dobson, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 4, 1906
Appeal, No. 132, Jan. T., 1905, by defendant, from judgment of C.P. No. 2, Phila. Co., Dec. T., 1902, No. 3,409, on verdict for plaintiff in case of Thomas Dougherty, by his next friend and father, John A. Dougherty, v. John and James Dobson. Affirmed.
Trespass to recover damages for personal injuries. Before BARRATT, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $2,500. Defendant appealed.
Error assigned was in refusing binding instructions for defendant.
The court would have erred in directing a verdict for the defendants. The questions of the negligence of the defendants and the contributory negligence of the plaintiff were for the jury alone and were submitted to them under proper instructions. The assignment of error is dismissed and the judgment affirmed.
Thomas Earle White, with him White, White & Taulane, for appellants. -- The question of contributory negligence, whether of a minor over or under the age of fourteen years, can only become a factor in a case if there be evidence which, if believed, would justify the jury in finding that a defendant were guilty of negligence, and the question whether or not there is such evidence is a question of law to be determined by the court before submitting the case to a jury: R.R Co. v. Hummell, 44 Pa. 375; Clough v. Hoffman, 132 Pa. 626; R.R. Co. v. Schertle, 97 Pa. 450; Rummel v. Dilworth, 131 Pa. 509; Ross v. Walker, 139 Pa. 42.
An employer is not liable for failure to instruct a minor employee as to the danger of cleaning a machine while it is in motion, where the danger is not only obvious, but where the danger is realized by the employee: Cudahy Packing Co. v. Marcan, 106 Fed. Repr. 645; O'Keefe v Thorn, 24 W.N.C. 379; Zurn v. Tetlow, 134 Pa. 213; Ciriack v. Merchants' Woolen Co., 146 Mass. 182 (15 N.E. Repr. 579); Lane v. Moore, 151 Mass. 87 (23 N.E. Repr. 828); Ash v. Verlenden, 154 Pa. 246; Betz v. Winter, 195 Pa. 346; Oskoscil v. Pencil Co., 6 N.Y.S. 501; Hickey v. Taaffe, 105 N.Y. 26 (12 N.E. Repr. 286).
An employer is not liable for failure to instruct a minor employee as to the danger of cleaning a machine while it is in motion, where he was specifically directed by regulations that machinery shall not be cleaned while in motion, which regulations are known to the employee, and he is injured while in the act of disobeying them: McEwen v. Hoopes, 175 Pa. 237; R.R. Co. v. Zebe, 33 Pa. 318; Flanagan v. Ry. Co., 163 Pa. 102; Pilkinton v. Ry. Co., 70 Texas, 226 (7 S.W. Repr. 805).
Edmund Randall, with him M. J. McEnery and James A. Flaherty, for appellee, cited: Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Welsh v. Butz, 202 Pa. 59; Tagg v. McGeorge, 155 Pa. 368; Prevost v. Ice Co., 185 Pa. 617; Casey v. Paving Co., 198 Pa. 348; Lillie v. Am. Car & Foundry Co., 209 Pa. 161.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The appellee, when in his thirteenth year, was employed by the appellants as a "doffer" in one of their mills. The sole duty of his employment, which was performed when the frame stopped, was to take off full bobbins, lay them aside and put empty ones on it in their place. After replacing the full bobbins with empty ones there was nothing for him or the other doffers to do until the frame was again stopped, when they repeated the performance. While it was in motion the doffers, according to the testimony of the manager of the appellants, sat down on benches. When the appellee was employed he was turned over by the foreman, Harry Flynn, to a little girl for instruction, who simply showed him how to take the bobbins off and put them on. He testifies that no warning was ever given him of the danger of the machine, and this may be so, for he was employed to do work on it only when it was not in motion and could not have been dangerous to him.
When the appellee had been in the service of the defendants for about two weeks, on the morning of May 15, 1902, at about 6 o'clock, after he had worked for almost twelve hours during the preceding night, the foreman came near to where he was standing waiting for another doffing and said to him, "Hey, there, boy, take that cotton out of the cog, quick." He turned around and saw that a draught from the window had blown threads into the cog wheels, and, instantly complying with the order given him, took hold of the ends, giving them a kind of twist to break them off. They were twisted into a thread which was too strong to break, and his fingers were drawn into the cogwheels and crushed. For the injuries thus sustained he seeks compensation in this suit.
What the appellee was directed to do by the foreman was no part of his duty as a doffer. This is conceded. The defendants themselves proved that the duty he was suddenly called upon to perform rested on the spinners alone, who were directed to perform it only when the machinery was not in motion. By placards around the mill the employees were prohibited from cleaning the machinery while it was in motion, under penalty of dismissal, and one of the reasons urgently pressed by counsel for the appellants why the appellee cannot recover is that he disregarded this plain rule of his employers, known to him and every other employee. Conceding that they all had knowledge of it, the employers could at any time have revoked it, or on any occasion directed that, notwithstanding it, machinery should be cleaned while in motion, and if the appellee had acted in pursuance of such direction given by them it can hardly be pretended that they could now shield themselves under the rule from the consequences resulting from their direction to violate it.
If the testimony of the appellee is to be believed, and what was done by him is to be regarded as coming within the rule prohibiting the cleaning of machinery, the direction to disregard and violate it was given by the man whom the appellants had placed in their mill as their representative who had employed the boy and whose duty, according to his own testimony, was to see that the appellee and the other employees did their work, whose superior he was, and whom they were bound to obey. If he ordered the appellee to disobey the printed direction of the appellants to their employees, they can find no shelter in their rule, for the foreman was their representative in the mill to secure employees for them, to see that the employees did their duty, being, according to his own testimony, the superior to whom they were responsible. Nothing more need be said upon this branch of the case than to call attention to Tagg v. McGeorge et al., 155 Pa. 368, as authority for holding that the defendants were bound by the act of...
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