Reese v. Hershey

• Decision Date: 12 July 1894
• Parties: REESE v. HERSHEY.
• Court: Pennsylvania Supreme Court

29 A. 907
163 Pa.St. 253

REESE
v.
HERSHEY.

Supreme Court of Pennsylvania.

July 12, 1894.

Appeal from court of common pleas, Lancaster county; H. C. Brubaker, Judge.

Action by Albert Reese against M. B. Hershey to recover for injuries sustained by his minor son while working in defendant's factory. From a judgment for plaintiff, defendant appeals. Affirmed.

29 A. 908

H. M. North and E. D. North, for appellant. George Nauman and B. Frank Eshleman, for appellees.

MITCHELL, J. The evidence of the general use of the machines, throughout the trade, without guards (assignments 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 negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business. Titus v. Railroad Co., 136 Pa. St. 618, 20 Atl. 517; Kehler v. Schwenk, 144 Pa. St. 348, 22 Atl. 910. It is true that the general custom would not be conclusive of this case, under its peculiar circumstances, to be noticed next; but it was the starting point in the defense, and the defendant was entitled to show it affirmatively, so as to impress it on the jury's mind. Moreover, the evidence offered in the fifteenth assignment of error to show that the same kind of machines were used without guards in another factory, where plaintiff's son had previously worked, bore directly on the only point in the case on which the defendant's negligence could be rested. This was that if plaintiff's son had only been accustomed to the machine with the guard, and might be liable, from force of habit, or ignorance of the increased danger when the guard was removed, to push his fingers too close to the rolls, and thereby get them caught he would have been entitled to special instruction as to this danger. As to what conversation or orders took place between the boy and his employer on this point, the evidence was conflicting. The case, therefore, could not have been taken from the jury; but the defendant was entitled to have explicit directions that the use of the...