Johnson v. Bruner
| Decision Date | 11 May 1869 |
| Citation | 61 Pa. 58 |
| Parties | Johnson and Wife <I>versus</I> Bruner. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius
Error to the District Court of Philadelphia: No. 126, to January Term 1869.
T. K. Finletter, for plaintiffs in error.—There was evidence of negligence to go to the jury. An employer is guilty of negligence and liable for injuries happening to his employee in the course of his employment, if he do not use suitable means and instruments to carry on his business: Hutchinson v. York, N. C. and Berwick Railway, 5 Exch. 343; Seare v. Lindsay, 103 E. C. L. R. 437; Barton's Hill Coal Co. v. Reed, 3 Macq. 266; Patterson v. Wallace, 28 Eng. L. & Eq. 51; Marshall v. Stewart, 33 Id. 1; Noyes v. Smith, 28 Vermont 61; Buzzie v. Laconia M. Co., 48 Maine 113; Railroad v. Keavy, 3 Ohio St. R. 201; McGatuck v. Wason, 4 Id. 566; Keegan v. Western Railroad, 4 Seldon 180; Ryan v. Fowler, 24 N. Y. 410; Cayzer v. Taylor, 10 Gray 274; Snow v. Housatonic Railway, 8 Allen 441; Lackawanna & B. Railroad v. Doak, 2 P. F. Smith 379; McCully v. Clark, 4 Wright 408; Caldwell v. Brown, 3 P. F. Smith 453. In the absence of facts from which a deduction of contributory negligence can be drawn, the presumption is against him whose misconduct rendered the accident possible: Beatty v. Gilman, 4 Harris 468; Myers v. Snyder, Brightly R. 493; Bush v. Johnson, 11 Harris 209; Bears v. Ambler, 9 Barr 193; Phil. & Reading Railroad v. Spearen, 11 Wright 300; Oakland Railroad Co. v. Fielding, 12 Id. 320.
W. L. Hirst, for defendant in error.—When the material facts are ascertained, the question of negligence becomes exclusively a question of law: Evans v. Pitts. F. W. & Chicago Railroad, 3 P. F. Smith 254; N. P. Railroad v. Heileman, 13 Wright 63. Any contributory negligence will defeat the action: Cattawissa Railroad Co. v. Armstrong, 13 Wright 193; Heil v. Glanding, 6 Wright 499; O'Brien v. Railroad Co., 3 Phila. R. 80; Railroad Co. v. Norton, 12 Harris 469; Beatty v. Gilmore, 4 Id. 466; Horricks v. Railroad Co., 1 Phila. R. 28; McCully v. Clark, 4 Wright 399. A person who engages in a dangerous business takes the risk: Strange v. McCormick, 1 Phila. R. 156; Seymour v. Maddox, 16 Q. B. 326; Priestly v. Fowler, 3 M. & W. 1; Couch v. Steel, 3 Ellis & Bl. 402; Wigmore v. Jay, 5 Exch. 354; Ryan v. Cumb. V. Railroad, 11 Harris 384; Frazier v. Penna. Railroad, 2 Wright 110.
This was an action brought, under the statute, by the parents of a minor son, to recover damages for his death, alleged to have been occasioned by the negligence of the defendant. The judge before whom the cause was tried ordered a judgment of nonsuit to be entered, and the court in banc refused to set it aside. As no opinion was delivered in the case, we are left to conjecture the ground on which the nonsuit was sustained. But it must have been either because, in the opinion of the court, the defendant was not shown to have been guilty of any negligence, or, if he was, that the minor's own negligence contributed to his death. Can the judgment of nonsuit, then, be sustained on either of these grounds?
It is well settled that where an injury happens to a servant in the course of his employment, the master is responsible if it was occasioned by his negligence. If it was the result of the hazardous nature of the employment, without any fault on the part of the master, he is not liable; but if his negligence was the direct and proximate cause of the injury, he is responsible, whether the employment was hazardous or not. These principles are so plain and familiar that they require no argument or authority for their support. Was there, then, any evidence tending to show that the defendant was guilty of negligence? The plaintiffs' son, a lad of about fourteen years of age, was employed by the defendant in his carding and spinning-room in the fourth story of the building where he carried on the business of manufacturing woollen goods. He was working with the stripper at one of the cards, and while carrying an armful of waste from the carding-machine into the waste-room, he fell through an open trap-door or hatchway, a distance of sixty feet, to the bottom of the building, and was killed. The hatchway was in the carding and spinning-room, immediately in front, and within six inches of the door-way leading to the waste-room. It was about five feet square, and in going in and out of the room the employees had to pass over it — there was no other passage. There was no railing or protection of any kind around the hatchway, the trap-doors of which were ordinarily kept closed, on a level with the floor, except when it was in use. All the witnesses describe it as dangerous, and from its location, size, and proximity to the door, it could not have been otherwise. Was it not, then, the duty of the defendant to have had a railing or other protection around it? and was he guilty of no negligence in permitting it to remain open — without any notice or warning — to the hazard of the lives and limbs of his employees? Had the court a right to assume that he was under no obligation to put any guard or barrier around it, or to give any notice or warning when it was open for use? If the defendant was not absolutely bound to put up a railing around the hatchway, was it not his duty to have a watchman stationed there to guard it whenever it was open, and give notice of the danger? And was it not negligence to intrust the duty of opening and using it to a lad of so little experience and discretion as the picker-boy? No attempt was made on the argument to show that the defendant was under no obligation to guard the hatchway, nor was it alleged that the death of the minor was not occasioned in part by his negligence. If the nonsuit was granted on the ground that there was no evidence of negligence on the part of the defendant, it was clearly erroneous. Was there, then, such evidence of negligence on the part of the deceased as to justify the court in withdrawing the case from the jury and determining the question as a matter of law? If it had been shown that his death resulted from the hazardous nature of his employment, then the court would have been justified in withholding the case from the jury; but it is not pretended that this was the cause of his death. He was not working at the hatchway at the time of the accident. If he had been lowering the waste, and by some mishap had fallen through the hatchway, then his death might be regarded as an accident, or result of the dangerous character of the business in which he was...
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