Stehle v. Jaeger Automatic Mach. Co.
| Decision Date | 20 April 1908 |
| Docket Number | 54 |
| Citation | 220 Pa. 617,69 A. 1116 |
| Parties | Stehle, Appellant, v. Jaeger Automatic Machine Company |
| Court | Pennsylvania Supreme Court |
Argued March 25, 1908
Appeal, No. 54, Jan. T., 1908, by plaintiffs, from judgment of C.P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for defendant in case of George Stehle, a minor, by his father and next friend, George Stehle, and the said George Stehle in his own right v. Jaeger Automatic Machine Company. Reversed.
Trespass to recover damages for personal injuries to a boy under fourteen years of age. Before CARR, J.
The opinion of the Supreme Court states the case.
Verdict and judgment for defendant. Plaintiffs appealed.
Error assigned among others was (15) as follows:
The trial judge erred in refusing the plaintiffs' request, at the close of the charge and before the jury retired, to further charge the jury upon the provisions of the Act of May 2, 1905, P.L. 352, inasmuch as the trial judge did not refer in his general charge to said act, and therein said charge was inadequate, and said request and said answer were as follows:
Counsel for plaintiffs requests the learned trial judge to charge the jury upon the provisions of the Act of May 2, 1905, P.L. 352 referring particularly to sections 2, 4, 5, 11 and 28.
The Court: That request is refused, because it was not presented at the proper time, under the rule of court.
Judgment reversed and a venire facias de novo awarded.
William F. Brennan, for appellants. -- The Act of May 2, 1905, P.L. 252, has not been passed upon by the appellate courts. A similar Act, that of June 2, 1891, P.L. 176, relating to employment of children in coal mines, was lately considered by this court: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311.
Acts of assembly similar to this Act of May 2, 1905, P.L. 352, have been passed by other states, and have been applied by courts of those states to facts similar to those now under consideration: Narramore v. Cleveland, etc., Ry. Co., 96 Fed. Repr. 298; Brower v. Locke, 67 N.E. Repr. 1015; Perry v. Tozer, 97 N.W. 137; Marino v. Lehmaier, 66 N.E. Repr. 572; Gallenkamp v. Garvin Machine Co., 86 N.Y.S. 378; Sterling v. Union Carbide Co., 105 N.W. 755; American Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N.E. Repr. 766); Woolf v. Nauman Co., 18 Am. Neg. Rep. 405.
As to the fifteenth specification, it is submitted that the plaintiffs' request to the trial judge to charge the jury upon the provisions referred to in the act of May 2, 1905, was presented at the proper time; because the act was offered and admitted in evidence, and the trial judge failed to refer to the act in his general charge. Counsel for appellants, believing that the trial judge had overlooked the act and feeling that the charge was incomplete without reference to it, called his attention thereto at the end of his charge. Counsel has not found a rule of court bearing upon this point, as indicated by the trial judge. This court has said, however, that where counsel desires the trial judge to charge the jury on matters which he has failed to mention, counsel should call his attention thereto before the jury leave the box. This was done in this case: Com. v. Zappe, 153 Pa. 498; Kehoe v. Traction Co., 187 Pa. 474.
Francis Shunk Brown, with him Ira Jewell Williams and Alex. Simpson, Jr., for appellee.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
The error which ran through the whole trial in the court below was failure to give effect to the Act of May 2, 1905, P.L 352. The case was tried under the rules of law applicable to cases of negligence where master and servant, both being competent to enter into a contract of employment and each presumably capable of appreciating the dangers thereof, are charged with the duty of exercising due care, the master in providing reasonably safe appliances and machinery, and the servant of using ordinary care to avoid open and obvious dangers. These rules have no application to the facts of the present case. The boy appellant was born June 6, 1892; was first employed by appellee company in April, 1905; and was injured January 27, 1906, being at the time of the injury under fourteen years of age. Section 2 of the act of 1905, provides that no child under fourteen years of age shall be employed in any establishment to which the provisions of the statute apply, and section 4 requires that "no minor under sixteen years of age shall be permitted to clean or oil machinery while in motion or to operate, or otherwise have the care or custody of, any elevator or lift." It seems to be conceded that the place where the boy worked was an establishment within the meaning of the act, and hence the case must be considered in the light of the statute regulations...
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