Johnson v. Bruner

• Decision Date: 11 May 1869
• Citation: 61 Pa. 58
• Parties: Johnson and Wife v. Bruner.
• Court: Pennsylvania Supreme Court

61 Pa. 58

Johnson and Wife v. Bruner.

Supreme Court of Pennsylvania.

May 11, 1869

February 5, 1869

1. Where an injury happens to a servant in the course of his employment, the master is responsible if it was caused by his negligence.

2. If an injury to a servant is the result of the hazardous nature of the employment, without any fault 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 business was hazardous or not.

3. If the misconduct of the servant or his omission of a duty defined or prescribed by law contributed to his injury there would be no question for the jury.

4. Negligence is always a question for the jury when there is any doubt as to the facts or the inferences to be drawn from them.

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.

This was an action on the case, commenced September 25th 1866, by Thomas Johnson and wife against James P. Bruner for negligence which caused the death of a son of the plaintiffs a lad of about fourteen years of age, who was in the employ of the defendant, a manufacturer of woollen goods. The lad was employed in the fourth story of the factory and fell through an open hatchway to the lower floor of the building a distance of about sixty feet. The fourth story was divided into two main rooms. The northern room contained the carding-machines and spinning-mules, and was about twice as large as the southern room. In the northwest corner of the southern room was a small room called the " " waste-room." The doorway between the main rooms was in the centre of the partition. In the north room directly opposite the door and about six inches from it was the hatchway, which was about five feet square. The doors of the hatch opened east and west from the middle and it had no guard around it. The door of the waste-room was at its north-east corner, opened into the south room, and was within a very short distance from the door through the main partition. The lad was engaged at a card, which was on the west side of the room and was the first from the hatchway between the card and the hatchway was a wool-box also on the west side of the room, two feet south from the card and facing it. The back of the box was seven feet high nearest the hatch and three feet high opposite the card.

William Reeves, a " stripper" in the employ of the plaintiffs, testified: " The boy fell down the trap about 5 1/2 o'clock P. M., in July 1866. He was working with me at the first card; he could only see the hatch when he came to the east corner of the woolbox. He had swept around the card and gathered an armful of waste. He took that across the trap-door into the waste-room. came back for more; gathered up another armful and started off to the waste-room. The trap-doors were both thrown back. That was the last I saw of him. He fell down the hatchway. When he crossed the trap and came back, it was as speedily done as he could walk back and pick up the armful of waste. Scarcely no time elapsed rom the time he had crossed the trap-door until he fell. The trap-door and hatchway were dangerous. There was never any notice given when the hatchway was open; there was no notice given that it was open at the time the boy Johnson fell."

On cross-examination he said: " When the trap-door was open a person could see it, if he was looking down at his feet. It was the usual time for opening it to lower the waste. The boy had been there, to my knowledge, four or five weeks. During all the time he was employed in this room. The picker-boy opened the trap-door. He generally opened it. The boy Johnson had a small armful of waste. It reached up to his breast. He might have passed the trap-door on the east and on the west side, but he could not pass round it. There was no room to pass on the south side. He had to pass over the trap-door to get to the waste-room. The space between the trap-door and the door leading to the waste-room is about six inches."

John Stead, a " picker-boy" in the employ of the defendant, testified: " The accident happened about 5 1/2 o'clock in the afternoon. I was tying up dirt or waste to take down stairs--down the hatchway. Johnson brought an armful of waste to the waste-room. He went back to take another, and then he fell. I was in the picker-room when he fell. I had opened the west door of the hatchway; the east door was down. I had drawn a bag of waste and left it in the door, and went back for another. It was then he fell. I gave no notice that I had opened the trap-door. There was no one helping me to lower the waste. On other occasions there was always some one helping me. I knew the hatchway was dangerous. There is now a protection to the hatchway, but not all the way round. The building is a pretty old one. The trap-door is the same in all the stories. The business could not be carried on without the hatchway. It was the usual hour of opening the trap-doors. It was the daily practice to do so. The boys generally carried the waste. The first armful that Johnson carried was a large one; the second was a small one. There was no particular time fixed for lowering the waste down the hatchway. I always did it between 5 and 6 o'clock; sometimes at 5 o'clock, sometimes at 5 1/2 o'clock, and sometimes later, just as I had the time. There was no particular time to do it. I did not see Johnson when he had the second armful. I picked up the waste at the bottom of the hatchway the next morning, and from what I gathered, I say he had a small armful."

The plaintiffs having closed their case, the court (Stroud, J.) ordered a nonsuit to be entered.

This, on removal of the case into the Supreme Court by the plaintiffs, was assigned for error.

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.

The opinion of the court was delivered, May 11th 1869, by WILLIAMS, J.

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...