Hettchen v. Chipman

• Citation: 41 A. 65,87 Md. 729
• Parties: HETTCHEN v. CHIPMAN et al.
• Decision Date: 29 June 1898
• Court: Court of Appeals of Maryland

41 A. 65

87 Md. 729

HETTCHEN v. CHIPMAN et al.

Court of Appeals of Maryland

June 29, 1898

Appeal from court of common pleas.

Action by Frank Hettchen, Jr., by his father and next friend, Frank Hettchen, Sr., against Henry Chipman & Son. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, PEARCE, FOWLER, BOYD, and ROBERTS, JJ.

Charles Winternitz and Thos. J. Mason, for appellant. Wm. L. Marbury for appellees.

MCSHERRY C.J.

This suit was brought by the appellant against the appellees to recover damages for a personal injury. At the time the occurrence happened, the appellant was a lad of 14 years of age. Some four months prior to the accident he had been employed by the appellees' foreman to gather up and pile in bins the spindles and chair legs made in the appellees' factory. Upon three or four occasions he sawed wood on one of the circular saws located in the basement of the factory, using the saw from three to four hours each time. It sometimes became necessary to place transverse sticks across the openings of the bins to prevent the spindles and chair legs, when put there, from rolling out. The foreman instructed the appellant to go into the yard and get such sticks whenever requisite, and directed him, if he found them too long, to carry them to the saw, and cut them the proper length. On the day the injury was inflicted the appellant undertook to saw one of these sticks, --in fact, it was a plank some three or four inches wide and an inch thick,--and one of the fingers of his right hand came in contact with the saw, was badly cut, and subsequently amputated. The saw which caused the injury was not the one that the appellant had previously used, but was a somewhat larger one, with longer teeth, and was located on the floor above the basement. The only witness who testified on the trial in the court below was the plaintiff himself. Upon the conclusion of his testimony an instruction was granted, at the instance of the defendants, withdrawing the case from the consideration of the jury, because there was no legally sufficient evidence of negligence to warrant the jury in finding a verdict for the plantiff. A judgment was accordingly entered for the defendants, and the plaintiff then took this appeal.

The cause of action is alleged negligence. Actionable negligence as we have repeatedly said, is breach of a duty that is owed to another. If in a particular instance no duty is owed, or if a duty, being owed, has been performed, then no action can be sustained, even though an injury has happened. Therefore the very first inquiry is, what duty did the employers owe to the employé? The duty of an employer is dependent on the circumstances. It is consequently relative and conditional and not unvarying and absolute. Among the many conditions that control it are the age of the employé, and the obvious and visible character of the...