Wynne v. Conklin

• Decision Date: 13 October 1890
• Citation: 12 S.E. 183,86 Ga. 40
• Parties: Wynne. v. Conklin.
• Court: Georgia Supreme Court

86 Ga. 40

12 S.E. 183

Wynne.

v.Conklin.

Supreme Court of Georgia.

Oct. 13, 1890.

Master and Servant—Negligence of Minor Servant.

Plaintiff, 13 years of age, had been injured while in defendant's employ. Previous to the injury he had been put to work on a large machine, which a boy of his size and age could not successfully operate. The boys in the shop were allowed to use the machine for their own purposes when not required to work for their employer. Plaintiff was injured while using the machine for his own purposes, and alleged negligence on defendant's part in not preventing him from using the machine, but he did not. testify whether he knew that the machine was dangerous, or whether he had capacity to appreciate the danger. Held, that it was error to grant a nonsuit, as the question whether plaintiff had capacity to appreciate the danger and provide against it was for the jury.

Error from city court of Atlanta; Van Eppes, Judge.

Arnold & Arnold, for plaintiff in error.

P. L. Mynatt, for defendant in error.

Blandford, J. The declaration of the plaintiff in error alleged that he was employed by the defendant in error to work in and about his tin-shop, to do such work as might be required of him by his employer; that he was 13 years of age, and had been put to work by the defendant upon a large and heavy machine, known as the "square shears, " for cutting tin; that he was too young and small to work this machine properly and safely; that while in the course of his employment, after he had finished his work for his employer, he went to this machine, and was cutting out some trinket for himself; that the foreman was present in the shop, and did not prevent him from so doing; that while thus using the machine, and not being able to appreciate the danger, he had two fingers of his hand cut off; and he al leges negligence on the part of his master in not preventing him from using the machine, and asks damages for such injury. The testimony introduced by the plaintiff, which was weak, tended to support his declaration. He showed that the machine was large and heavy, and that a boy of his size and age was not able to successfully operate it; that, previous to the injury, he had several times been put to work on this machine; that the boys in the shop were allowed to use the machine in making any trinkets or things they desired, when not required to work for their master. He showed that he was 13 years of age. He did not testify whether or not he then knew the...