Walkowski v. Penokee & G. Consol. Mines

• Decision Date: 25 January 1898
• Parties: WALKOWSKI v. PENOKEE & G. CONSOL. MINES.
• Court: Michigan Supreme Court

73 N.W. 895

115 Mich. 629

WALKOWSKI v. PENOKEE & G. CONSOL. MINES.

Supreme Court of Michigan

January 25, 1898

Error to circuit court, Gogebic county; Norman W. Haire, Judge.

Action by Martin Walkowski against the Penokee & Gogebic Consolidated Mines to recover damages for personal injuries. Judgment for defendant, from which plaintiff appeals. Affirmed. Button & Norris, for appellant.

Charles E. Miller, for appellee.

GRANT C.J. (after stating the facts).

1. Ryan was 17 years and five months old at the date of his employment. It is urged that it is negligence to employ one so young in such a responsible position, or, at least, that it is a question for the jury to determine. Young Ryan had had an experience of nearly 2 years in a similar position at another mine, where he had performed his work satisfactorily. He had performed his work satisfactorily, and without accident, for between 7 and 8 months at the defendant's mine. It is conceded that he had sufficient physical ability, and was possessed of ordinary intelligence. Plaintiff's own testimony shows that he had the "appearance of being older than he was." Plaintiff cites no authorities to sustain his contention. The work was not difficult. There is nothing to show that it would be safer to employ for this work a person who was older. The fact that he had done his work safely and satisfactorily for over 7 months is the best proof of his competency. There is no presumption of law that one 17 or 18 years of age cannot do such work as safely and as well as one older. There is no authority or reason in the proposition that one of that age is an improper person to employ for such work. The authorities appear to be uniform against the proposition. Sutherland v. Railroad Co., 125 N.Y 737, 26 N.E. 609; Coal Co. v. Brownlie, 60 Ark. 582 31 S.W. 453; Neal v. Gillett, 23 Conn. 437; Molaske v. Coal Co., 86 Wis. 220, 56 N.W. 475. In Sutherland v. Railroad Co., the telegraph operator, through whose negligence the accident happened, was a little over 17 years old, had had over a year's experience, been in the employ of the company 3 months prior to the accident, and had discharged his duties intelligently and to the entire satisfaction of the company. It was held that the jury could not be permitted to infer that the operator was "incompetent from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did." In Molaske v. Coal Co., it was held negligence to employ a boy 12 years old in a responsible position, requiring constant watchfulness and attention. The court appears to have placed its holding upon the presumption of the common law, which fixes the age when the presumption of capacity arises at 14.

2. Did the company exercise due care in employing Ryan? One Richard Pascoe, the master mechanic of the defendant, was the authorized agent to employ him. Ryan's father had been a practical engineer, known to Mr. Pascoe for 18 years. Mr Pascoe was informed by his father of the experience his son had had, and was advised that he was capable of doing the work. Mr. Pascoe was familiar with the method of brakeing at the Michigamme mine, where young Ryan had had his experience, which was the same as in the defendant's mine. It further appears that the duties of the hand brakeman at the defendant's mine were more simple than at the mine at Michigamme. One McCall, an engineer, and witness for the plaintiff, testified that, "if a man had had a year's experience, he ought to be a very good man," and "I should consider two years' experience would make any one all right." One John St. Cyr, another witness for the plaintiff, testified on cross-examination: "I should think that if Mr. John Ryan recommended a man, that he would be all right." These facts were undisputed. It therefore became a question of law for the court to determine whether the defendant had exercised due care in the employment of Ryan. The degree of care required is well stated in Railway Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 937: "It is such care as, in view of the consequences that may result from negligence on the part of employ�s, is fairly commensurate with the perils or dangers likely to be encountered." In this case the machinery used was simple and easily managed. Defendant made due inquiries, of one competent to judge, as to Ryan's experience and ability. The defendant therefore exercised due care in employing him.

3. There was no evidence that Ryan had become incompetent, or if there were, that knowledge of his incompetency had been brought home to the defendant. When the master has exercised due care in the employment of a servant, he may rely upon the presumption of competency until he has notice or knowledge to the contrary. 1 Bailey, Mast. Liab. � 1413; Chapman v. Railway Co., 55 N.Y. 579. The only evidence plaintiff offered from which he claimed the right to go to the jury upon the question...