Reese v. Hershey

• Decision Date: 12 July 1894
• Docket Number: 79
• Citation: 163 Pa. 253,29 A. 907
• Parties: Albert Reese v. M. B. Hershey, trading as Lancaster Caramel Co., Appellant
• Court: Pennsylvania Supreme Court

29 A. 907

163 Pa. 253

Albert Reese v. M. B. Hershey, trading as Lancaster Caramel Co., Appellant

No. 79

Supreme Court of Pennsylvania

July 12, 1894

Argued May 15, 1894

Appeal, No. 79, Jan. T., 1894, by defendant, from judgment of C.P. Lancaster Co., Oct. T., 1890, No. 40, on verdict for plaintiff. Reversed.

Trespass by father to recover damages for personal injuries to his minor son. Before BRUBAKER, J.

At the trial it appeared that, on July 29, 1890, plaintiff's minor son, Elam Reese, seventeen years old, was injured while working at a candy-rolling machine in defendant's factory. It appeared that the machine at which he worked was fitted with a safety-guard of defendant's invention. This guard was not in use in other factories. Plaintiff's son went to work about five o'clock in the morning, and continued working the machine until seven o'clock. Defendant then stopped the machine, took off the guard, and directed the boy to go on with the work. He did so, and worked about four hours before the accident occurred.

When William L. Blair, a witness for defendant, was on the stand he was asked the following questions:

"Q. What kind of rolls, if you know, are used in the caramel factories throughout the country." Objected to objection sustained and bill sealed. [10]

"Q. Do you know whether the McGintey rolls are in common use in the caramel factories throughout the country?" Objected to, objection sustained and bill sealed. [11]

"Q. Are the McGintey rolls, the same as these without the guard, in common use in caramel factories throughout the country?" Objected to, objection sustained and bill sealed. [12]

"Q. What kind of rolls are in ordinary and common use in caramel factories?" Objected to, objection sustained and bill sealed. [13]

By Mr. North: I offer to show by the witness that he has been in all, or nearly all the caramel factories in the United States, and is familiar and acquainted with the kind of rolls used in nearly all the factories. Objected to, objection sustained and bill sealed. [14]

By Mr. North: I offer to show by the witness that the McGintey rolls in use in Huber & Holman's factory at the time Elam Reese worked there were without guards, and that they were the same kind of rolls as this one [meaning the one in court]. Objected to, objection sustained and bill sealed. [15]

By Mr. North: I offer to show that the McGintey rolls, such as were used in the factory of the defendant, are the kind that was used in all the caramel factories in the United States, and that they are used in them without any guards. Objected to, objection sustained and bill sealed. [16]

The court below charged in part as follows:

"Now what is the measure of damages in this case? You will perceive, as it was stated by the counsel on either side, that this suit is not brought to recover damages for the injury to or loss by the boy, but for the loss of services, to which the father would be entitled during his minority. The father is bound to support his child, as every father is, until he arrives at the age of twenty-one; he has a right to educate him within his means; he has a right to put him out to service as in this case, and for such services the father is entitled to his wages till he arrives at the age of twenty-one. As I have said before, it seems that this boy was employed by the defendant, and that these wages were to be paid to the father, and that the wages were $2.50 per week. [Unfortunately we have no testimony here to guide you as to the measure of damages, except this testimony as to his wages of $2.50 per week. It would, perhaps, have been better if the parties would have given us some evidence to show what he might get by way of promotion.] We know nothing about the capacity of this boy except what we have heard here, and in the absence of such testimony you are allowed to use your judgment as to what he might have earned, taking the present situation into account, what he might have earned from the time this suit was brought until he arrived at the age of twenty-one; but in so doing you should not be extravagant. You should not allow your feelings to run away with your judgment. You should look at it as every careful business man would look at it."

Verdict and judgment for plaintiff for $1,000.

Errors assigned were, among others, (7) instructions as in brackets; (10-16) rulings; quoting bills of exceptions and instructions.

Judgment reversed and venire de novo awarded.

H. M. North, E. D. North with him, for appellant. -- The court should have admitted the evidence.

Plaintiff's son had sufficient discretion to understand the dangers of his employment, and when he engaged to work at the machine, he assumed the risks of his employment: Nagle v. R.R., 88 Pa. 35; Patterson's Ry. Accident Law, § 73; Resse v. Clark, 146 Pa. 465; R.R. v. Lyons, 119 Pa. 324; Titus v. R.R., 136 Pa. 618; Iron Ship Building Works v. Nuttall, 119 Pa. 149; Kehler v. Schwenk, 144 Pa. 348; Ford v. Anderson, 139 Pa. 261; Augerstein v. Jones, 139 Pa. 183; Ash v. Verlenden, 154 Pa. 246; Payne v. Reese, 100 Pa. 301; Wanamaker v. Burke, 17 W.N. 225; Tagg v. McGeorge, 155 Pa. 368; O'Keefe v. Thorn, 24 W.N. 379; Patterson v. R.R., 76 Pa. 393; Dodger v. Wanamaker, 38 Leg. Int. 458; R.R. v. Coon, 111 Pa. 430; Zurn v. Tetlow, 134 Pa. 215; Coal Co. v. Hayes, 128 Pa. 307; Diehl v. Iron Co., 140 Pa. 487; McMellen v. Union News Co., 144 Pa. 332; Westerberg v. R.R. Co., 142 Pa. 471; Schwenk v. Kehler, 122 Pa. 67; Kehler v. Schwenk, 151 Pa. 505; Lebbering v. Struthers, 157 Pa. 312; Madara v. I. & S. Co., 160 Pa. 110; Rummell v. Dilworth, 111 Pa. 343; Rummel v. Dilworth, 131 Pa. 510; Hoffman v. Clough, 23 W.N.C. 399; Mfg. Co. v. McCormick, 118 Pa. 519; Sykes v. Packer, 99 Pa. 465; Ry. v. Bresmer, 97 Pa. 106; Beittenmiller v. Brewing Co., 22 W.N. 33; Johnson v. Wilcox, 135 Pa. 217.

The court was in error in instructing the jury as to the measure of damages: R.R. v. Kelly, 31 Pa. 372; R.R. v. Zebe, 33 Pa. 318; R.R. v. Allen, 53 Pa. 276; R.R. v. Books, 57 Pa. 339; R.R. v. Adams, 89 Pa. 31; R.R. v. Ogier, 35 Pa. 60; Collins v. Leafey, 124 Pa. 203; R.R. v. Frantz, 127 Pa. 297; R.R. v. McCloskey, 156 Pa. 254.

B. Frank Eshleman and George Nauman, for appellee. -- When young persons without experience are employed to work with dangerous machines, it is the duty of the employer to give suitable instructions as to the manner of using them and warning as to the hazard of carelessness in their use; if the employer neglects this duty, or if he give improper instructions, he is responsible for the injury resulting from his neglect of duty: Tagg v. McGeorge, 155 Pa. 375; Kehler v. Schwenk, 151 Pa. 505; Ash v. Verlenden, 154 Pa. 246; Patterson v. R.R., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 199.

As to the question of the measure of damages it may be said that no point or prayer for instructions was submitted to the court and that the question was fairly and impartially left by the court to the jury with adequate and intelligible instructions.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The evidence of the general use of the machines throughout the trade, without guards, (assignment 10 to 16 inclusive) should have been admitted. In all actions for negligence it is important that the jury should be informed explicitly just what the negligence consists in. The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover the use of a dangerous machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger but...