Smith v. Irwin

• Decision Date: 12 December 1889
• Citation: 51 N.J.L. 507,18 A. 852
• Court: New Jersey Supreme Court
• Parties: SMITH v. IRWIN.

18 A. 852

51 N.J.L. 507

SMITH

v. IRWIN.

Court of Errors and Appeals of New Jersey.

Dec. 12, 1889.

(Syllabus by the Court.)

Error to supreme court, on case certified from circuit court, Essex county

J. Frank Fort, for plaintiff in error. Ludlow McCarter, for defendant in error

VAN SYCKEL, J. These are two suits, involving the same questions of law,—one brought by the father, to recover damages for injury to his son, and the other brought by the son, in the name of the father, to recover compensation for injury to himself. Smith, the defendant below, was a manufacturer in the city of Newark. Robert J. Irwin, the son, then 17 years old, was injured August 4, 1886, while working a circular saw on the said defendant's premises. The question for consideration on the trial of the cause was whether, under the evidence, the defendant below was liable in law to respond in damages for the injury which is the subject-matter of this suit. The only question to be determined in this court is whether the trial judge correctly stated to the jury the law pertaining to the case. In the first part of the charge he stated the law as follows: "An employe takes upon himself the risks that are fairly and reasonably incident to the employment in which he engages. That, gentlemen, is the general rule of law. It applies in all cases, where the employe is an adult. But the doctrine I have stated is modified where the employment is of an infant, a minor, and is one that in its nature is hazardous. Then the rule is that the employer is under a duty to give the employe such notice of the danger and such instruction as would enable him to comprehend the dangers that are incident to his employment; and, before I leave the case in the hands of the jury, I think, in your minds, it will resolve itself into the inquiry whether that duty has been performed. In order to express the proposition of law I have mentioned with more clearness, I will read it from a book of acknowledged authority. The author, speaking of the general rule I have mentioned,—that is, that the employe takes upon himself all the risks that are naturally and fairly incident to the employment in which he engages,—uses this language: 'This rule is modified so far as to put upon himself, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all. The master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance, and inexperience of the servant as to make him fully aware of the danger to him, and to place him in substantially the same position as if he were an adult.' That law has been recognized and been made the basis of decision in our own supreme court. Beckham v. Hillier, 47 N. J. Law, 14. I will read an extract from that opinion: 'Minor servants also are held to assume, by their contract of employment, those ordinary risks of their service which are obvious to them, or have been pointed out in a manner suited to the comprehension of their youth and inexperience.' They take upon themselves the 'ordinary risks of their service which are obvious to them, or have been pointed out in a manner suited to the comprehension of their youth and inexperience. They cannot ignore the dictates of common prudence, or the instructions of their superiors to guard themselves from these apparent dangers, and charge the consequences upon their employers.' That, gentlemen, is the law as established, not only elsewhere, but it is the law as established in this state, and the rule of law that is to be applied in this case."

The evidence was uncontradicted that the boy was totally unacquainted with machinery, and had no previous experience in the...