Coughlin v. Blaul

87 A. 766, 120 Md. 28, 1913 Md. LEXIS 120

• Court: Court of Appeals of Maryland
• Decided: February 15, 1913
• Status: Published

Opinions

Burke, J.,

delivered the opinion of the Court.

This is a suit brought by a servant against his master to recover damages for personal injuries alleged to- have been caused by the master’s negligence.

At the time the plaintiff was injured he was about eleven years old, and the injuries sustained were painful and permanent — the fingers of one hand being cut or torn off. At the close of the plaintiff’s case, the Court directed a verdict for the defendant by instructing the jury that the plaintiff had offered no legally sufficient evidence under the pleadings of the negligence of the defendant as the proximate cause of the plaintiff’s injury. The plaintiff excepted to this instruction, and from the judgment for the defendant he has prosecuted this appeal.

As the prayer refers to the pleadings and challenges the right of the plaintiff to recover thereunder the allegation of the declaration must be examined. It is the settled law that a defendant has the right to have the jury confined to the issues made by the pleadings. City Passenger Railway Company v. Nugent, 86 Md. 360; Fletcher v. Dixon, 107 Md. 420. The burden is Upon the defendant to offer legally sufficient evidence to prove the allegations of the declaration which constitute the ground of action, and if he fails to do this he is not entitled to recover. When the evidence offered in the case is legally insufficient to fix a liability upon the defendant under the pleadings, it is the duty of the Court, when applied to by an appropriate prayer, to instruct the jury to find their verdict for the defendant.

The declaration in this case contains a single count. It alleged -that the defendant, Frederick H. Blaul, trading as F. A. Blaul Sons, was the owner and proprietor of a certain meat shop located in Cumberland, Maryland, in which shop he carried on the business of cutting up and grinding meat for sale at retail, and that for the purpose of ¿hoping and grinding up meats into sausage and otherwise, the defendant installed a machine in said shop, which machine was fastened to the wall and on the top of a table, so that the meat after being chopped up was pushed out of the bottom of the machine into a receptacle below; that said machine had a funnel arrangement on top into which the meat was placed for grinding, and contained revolving knives or sharp coils to grind up the meat; that the machine was run by a powerful electric current, turned on and off by means of an exposed push button attached to the wall above the machine and four or five feet from the floor. It further alleged that in August, 1911,'the plaintiff was employed by the defendant to carry bundles and packages of meat, without the knowledge or consent of his parents, and that on the 15th of August, 1911, he and a certain Earl Warner (a boy about thirteen years of age employed then and there by the defendant), “were negligently and wrongfully put to work by the defendant at cleaning said meat chopping machine, which machine was highly dangerous to persons of the youth and inexperience of plaintiff and the said Earl Warner, and that as a proximate consequence of said wrong and negligence, the plaintiff,, while so cleaning said machine and using due and proper care and caution on his part, was seriously injured by his right hand becoming caught in the revolving knives or coils of said machine, and being mangled and torn off.” The declaration further alleged that both he and the said Earl Warner, by reason of their age, lack of judgment and discretion, were utterly ignorant of the dangers encountered in cleaning and working about the machine, and were ignorant of the workings and power of the same, and that neither of them were ever instructed as to the dangers of the machine or how to safely clean it, or as to the danger of taking out and cleaning the knives or coils or how to properly perform that work; that the room in which they were set to work on the machine was a dangerous and unsafe place in which to work, and that the machine and equipment were unsuitable, dangerous and unsafe for a person of the age, lack of discretion and inexperience of the plaintiff and the said Warner to work with; that Earl Warner was, by reason of his youth and inexperience, incompetent, to the knowledge of the defendant, and was employed by the defendant in violation of the Child Labor Law of Maryland. (Acts 1912, Oh. 131.) The declaration then alleged that the injury sustained by the plaintiff “was directly caused by the negligence of the defendant in so placing him and said Earl Warner at work in cleaning said dangerous and unsafe machine, without being instructed by the defendant, his agents and servants how to clean the same, and how to avoid the dangers incident to boys of their yonth, lack of discretion and inexperience; and to the negligence of the defendant in so placing the plaintiff in a dangerous and unsafe place in which to work, and in putting him to work on a machine which was unsuitable and dangerous to one of his age, lack of caution and discretion, and the defendant was further negligent in setting the plaintiff to work at said machine with said Earl Warner because of the youth, inexperience and incompetency , of the said Earl Warner, etc.”

The proof shows that the plaintiff was employed by the defendant, and that a Mr. Woolford, who had charge of the shop for the defendant, gave him orders as to his work. This shop consisted of two rooms, — a store room and a small back room which was poorly lighted. In this back room was a funnel shaped meat grinder operated by electricity. There were coils of knives inside the grinder, and when the electricity was applied these knives revolved with great rapidity. The knives at times became choked or clogged with ground meat and it became necessary to clean them. In order to clean them it was necessary to take out the coil of knives.

The duty of the.plaintiff was to carry packages and sometimes to clean the machine. He had cleaned the machine once prior to the accident. On the day he was injured he was directed by Mr. Woolf or d to clean, the machine; but was not told anything about the machine or warned of its danger. Electricity by which the machine was set in motion was applied by two buttons, — one on the wall of the room near the machine and about five feet from the floor, and one on the machine itself. By means of these buttons the electric current was turned into the motor, and the grinder set in operation.

The'evidence tends to show that the electric current was turned on at the button on the wall at the time the plaintiff was put to cleaning the machine, and to start the revolution of the knives it was only necessary to turn the button at tached to the machine. The evidence further tends to show that neither the plaintiff, nor Earl Warner, nor Bud Naylor, a colored hoy who was in the room at the time, touched the button on the wall.

As a result of all the evidence we are of opinion that the plaintiff was ordered to do a work in the performance of which he was exposed to dangers and risks of injury which by reason of his youth and inexperience he did not full understand or appreciate, and that under the circumstances it was the duty of his master to have warned him of the danger, and to have given him proper instructions. This the master failed or omitted to do, and this breach of duty on the part of the defendant constituted negligence on his part. The plaintiff, of course, knew that he would be hurt if he put his hand in the machine when the current was on. He knew the electricity was applied by means of the buttons, but he did not know which button must be turned in order to start the machine. To place a child of such tender years, without warning or instructions in a situation so exposed to dangers, which he did not fully appreciate, was a clear act of negligence, and if the evidence showed that the injury was the result of that negligence the defendant would be clearly responsible. The liability of a master for injuries resulting to children of tender years from such a failure of duty is well settled. “Ordinarily,” said Judge McSheery in Levy v. Clark, 90 Md. 146, “it may be laid down as the general rule that the servant assumes the risk of all open, obvious and apparent perils incident to the service he undertakes. This rule is qualified when the servant, by reason of tender years, is unable to appreciate or understand those perils from his own observation. In such instances it becomes the duty of the master to warn the servant of the existence of the dangers, which, though visible to others, are not evident to one of immature years and are not evident to him because of his want of capacity, growing out of that immaturity, to appreciate or comprehend them. A duty to warn a child of the dangers incident to a hazardous employment does not arise when the child, though young and inexperienced, actually knows the peril.” Chambers v. Woodbury Manufacturing Co., 106 Md. 496.

But there is evidence in this case which exempts the defendant from legal liability which would otherwise attach to him under the principles stated.

■ The record shows that the injury inflicted upon the plaintiff was directly caused by the act of Earl Warner. This hoy was in the employ of the defendant at his meat shop, and his duty was, to use his own language “to clean up things and carry meat out.” He was in the small room where the grinder was located when the plaintiff was injured. It was not a part of his duty to take the machine apart to clean it, and he had no instructions to take it apart. On the contrary, le had been instructed by Mr. Woolf or d, who was in charge •of the business for the defendant, not to take it apart. There is no evidence in the case to support the allegations in the declaration that the plaintiff and Earl Warner were put “to work by the defendant at cleaning said meat chopping machine.” The evidence, on the contrary, shows that at the time of the injury Earl Warner had no duty or instructions with respect to the machine, and that his thoughtless and heedless, hut well meaning act, was purely voluntary on his part, — done not in the line of his duty as the servant of the defendant. His motive was good. But unfortunately resulted in a painful and distressing injury to his companion whom he kindly volunteered to assist.

The circumstances under which the plaintiff was injured will now he stated.

To clean the machine it was necessary to take out the grinder of knives. The plaintiff was in the act of doing this when he was hurt. The current was off at the time. The grinder was taken out at the end of the machine, and the plaintiff had some difficulty in moving it, and he put his hand in the funnel or hopper to loosen it and to push it out at the end. Earl Warner was lying on a hoard in the room, and seeing the difficulty the plaintiff was having, said he would help him. He went hack of the plaintiff, who had his right hand in the funnel, and turned on the electricity by means of the button on the machine. This started the revolution of the knives, and the plaintiff’s fingers were cut off.

Earl Warner testified that he told the plaintiff he intended to turn on the current; but the plaintiff said he did not so inform him, and that he thought Warner intended to help him push the grinder out through the end of the machine.

It is a perfectly well settled principle that to entitle the plaintiff to recover in an action of this kind he must show not only that he has sustained an injury, but that the defendant has been guilty of some negligence which produced that particular injury. . The negligence alleged and the injury sued for must bear the relation of cause and effect. The concurrence of both and the nexus between them must exist between them to constitute a cause of action. As an injury may occur from causes other than the negligence of the party sued, it is obvious that before a liability on account of that injury can be fastened upon a particular individual it must be shown, or there must be evidence tending to show, that he is responsible for it; that is, that he has been guilty of the negligence that produced, or occasioned that injury. Benedick v. Potts, 88 Md. 52.

Assuming the defendant to have been guilty of negligence in placing the plaintiff to work upon the machine under the circumstances stated, it can hardly be contended that that negligence was the direct cause of the injury. The injury to the plaintiff was the direct result of the negligent act of Eai'l Warner, who was not put to work upon the machine and who had no duty with respect to it at the time. The act of Earl Warner which dir.ectly caused the injury was an independent cause for which the master under the facts cannot be held responsible.

Being of opinion that the Court below committed no error in granting the prayer which' directed a verdict for the defendant, the judgment will be affirmed.

Judgment affirmed, with costs.