Hinckley v. Horazdowsky

• Decision Date: 14 May 1890
• Citation: 133 Ill. 359,24 N.E. 421
• Parties: HINCKLEY v. HORAZDOWSKY.
• Court: Illinois Supreme Court

133 Ill. 359

24 N.E. 421

HINCKLEY

v.HORAZDOWSKY.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from appellate court, first district.

On rehearing. For former opinion, see 23 N. E. Rep. 338.

McKenzie & Wood, for appellant.

Jones & Lusk, for appellee.

WILKIN, J.

This is an action on the case by appellee against appellant, and other defendants not served, to recover for a personal injury alleged to have been received by him through their negligence. The declaration is of one count only, and avers that defendants were on the 4th of July, 1886, the owners of and operating a planing-mill in the city of Chicago, wherein they used and employed certain machines for planing wood; and said plaintiff, then a minor of the age, to-wit, 12 years, was then and there employed and engaged by said defendants in and about their said business, and while so employed and engaged the plaintiff was then and there, by said defendants, negligently and improperly ordered and directed to attend to and oil one of the machines then and there used and operated, and being used and operated by said defendants, which said direction and order of said defendants was then and there dangerous and hazardous to this plaintiff, because of his tender age, as aforesaid, and well known so to be by said defendants; and while said plaintiff was engaged in attending to and oiling said machine, in obedience to said order and direction of said defendants, and using all due care and diligence, the arm of said plaintiff was caught, crushed and mangled in and by said machine, so that plaintiff is and will be a cripple for life because thereof, and deprived of the use of said arm. The plea was the general issue. Plaintiff below recovered a judgment for $3,000, and costs, which the appellate court has affirmed.

It must be admitted, we think, that the declaration is rather an unusual one, and somewhat loosely drawn. It does not proceed upon the theory that the injury was received while plaintiff was performing labor outside of his contract of employment, although his counsel so treat it in their argument. The negligence complained of in the declaration is that the defendants wrongfully ordered the plaintiff, he being a child without experience in such matters, to oil a piece of machinery, the doing of which exposed him to great peril of life and limb. It is not the case merely of a minor being set at dangerous work, for in such cases the master is not liable for the risk, if the servant has sufficient capacity to take care of himself, and knows and can properly appreciate the risk. 1 Shear. & R. Neg. (4th Ed.) § 218. It belongs to the other class of cases mentioned by the authors, in the same section, of which it is said: ‘But, while the mere fact of minority is deemed immaterial, it is well settled, in America at least, that any actual incapacity of a minor to understand and appreciate the perils to which he is exposed is to be fully considered,and that he can recover from his master for injuries suffered from any peril the nature of which he did not know, or could not properly appreciate, if he did nominally know, and to which a prudent and right-minded master would not have allowed him to be exposed.’ And says Wharton, in his work on Negligence, § 216: ‘Hence we may hold that where a child is employed the employer must look out for the child, and must see that it is not exposed to danger arising from the structure of building or machinery which an operative of ordinary intelligence and experience would perceive. Notice of danger is not enough. The child must have sufficient instructions to enable him to avoid danger.’ Many cases are cited by both these authors in support of the text.

The rule is so just and humane, when applied to a case clearly falling within its principles, that no court would hesitate to enforce it, as of first impression. Children of tender years are often employed about factories in which are used pieces of complicated and dangerous machinery. If one of these is sent by the master or his superintendent, with or without instructions, where he will be exposed to revolving wheels, belts, and pulleys, any one may know that, by reason of his inexperience and immature judgment, he is liable to be killed or maimed, and, if he is injured while using due care for one of his capacity, it would seem too clear for argument that the master should be held liable. To say that such a child takes the risk of his employment,-that if he is not willing to take the hazard of obeying the command he must refuse,-is idle, if not cruel. By his inexperience he is unable to comprehend the risk. By his childish instincts he implicitly obeys. Of the existence of the rule, and its pre-eminent justice, there can be no doubt. Does this case fall within it? This question...