Foster v. Pusey

14 A. 545, 13 Del. 168, 8 Houston 168, 1888 Del. LEXIS 10

Opinion

Comegys, C. J.,

charging the jury :

This is the first time a case involving the questions this case does, has been presented to a court and jury in this state. There may be nothing very unusual in the features of it to men who are • accustomed to work in machinery in mills or to mill-owners; but such a one has not come within this court’s cognizance before the present time. The action is for the recovery of damages to the plaintiff which he sustained, at the time he was in the defendant’s employ in his wadding or shoddy mill, in this city, by reason of alleged negligence on the defendant’s part to provide the plaintiff with safe machinery to work with or upon. His case is that the injury he received, for which his claim of damages is made, was such as could not have occurred if the defendant had observed and performed his duty alluded to. The defense brought forward is that the injury to the plaintiff was not owing to any neglect of duty incumbent on him as the employer, or (in legal phrase) master, of his servant, the plaintiff, but arose out of the latter’s own negligence entirely ■ but, if there was any neglect of duty on his (the defendant’s) part, it was not owing to that that the accident happened, but to want of proper care on the part of the plaintiff in working with the machine. The plaintiff’s case, therefore, is that he lost his hand in consequence of the breach of duty on the part of the defendant; and that of the latter is that there was in fact, in this case, no breach of duty by him; but, if there were, the injury would not have been received if the plaintiff had observed his duty,—that is, such caution or circumspection as persons acquainted with the danger of an employment are accustomed to take, or are held by law bound to take, with respect to it. A perfectly safe employment—as plowing, for example, with an ordinary team—requires but very little care on the part of the farm hand, but working with reaping-machines, threshing machines, corn-shellers, and the like> makes necessary much care to avoid receiving injury. Feeding an engine with fuel is quite a safe employment; but directing its operations when in motion, so that, while it performs the work it is intended for, and which a servant is employed to manage that no avoidable accident shall happen, requires, in order to make that service safe, that the servant or person employed shall have the necessary skill for that business, and use it with such prudent caution as shall be reasonably requisite to protect himself from personal injury, where such is likely to result from want of such caution.

On the 2d of June, 1886, the defendant was the owner and operator of the mill before referred to. The plaintiff was a young man, brought up to the business of farming, and knowing nothing of any other, except that he had such slight knowledge of black smithing as a few months’ service as helper to a blacksmith could give him. He came to Wilmington about the 1st of June, and applied to the defendant for work in his mill, which was given him, with full knowledge, on the defendant’s part, that he had no knowledge whatever of machinery. On the 2d of that month he set in to work; and, in view of his ignorance, the defendant assigned him an instructor in the person of the defendant’s witness William M. Walraven, who showed him how to work the machine he was assigned to. According to the testimony of the plaintiff, W alraven remained with him the first day he took service, (the 2d of June,) the next, and part of that following ; by that of Walraven, he was with him four or five days. When the latter left him, it was supposed, no doubt, by both, that the plaintiff could properly work the machine himself. Walraven says he showed the plaintiff' every part of the machine, and explained to him its operation, what he was expected to do, and how to do it. Everything went on without accident until the 17th of the month, when the casualty occurred which made necessary the amputation of the plaintiff’s right hand, which had been caught by that one of the revolving toothed cylinders which had been pointed out to you on the diagram, and was so lacerated as to require it to be cut off. As before said, this action was brought to recover compensation, by way of a verdict of damages, for the plaintiff’s injury. Whether he has shown himself, by the testimony in the case, entitled to any damages, and, if so, what should be the amount thereof, within the limit of the claim, is for you to determine upon a careful, unbiased, review, and consideration of all the testimony on both sides, and due observance of the law applicable to the case as it shall be given you by the Court.

It is a fact, admitted of no dispute, that, relatively at least to other manual labor employments, working with machinery driven by engines using steam power is a dangerous one, as shown by the numerous accidents therefrom, the subject of suits in court, and also by actual observation. As no owner of machinery on anything like a large scale—as that, for example, in a shoddy-mill—can run it himself, doing all the service necessary,' therefore he must, of course, employ agents or servants to assist him in that business. He will have a general manager or overseer, a superintendent of the machinery, generally, etc. You have heard the several functions of these officers explained. They stand, generally, in place of the owner, who, as he must act through and by them within their respective spheres, is as much bound by their actions, within the scope of their authority, as if he acted hipiself. So, also, whatever is necessary to be done, under circumstances, and which such agents are called upon to do, if not done within a reasonable time, is as much his neglect or default as if the call .to do it had been made upon him personally. Applying this to the case presented by the testimony of the plaintiff given by himself, there was a call or demand made by him, on the Saturday next before the accident occurred, with which compliance was promised. Before saying more with respect to that, it is proper that you should be informed of the law that governs master and servant during the continuance of the service of the latter, or, rather, the law that operates at the time of employment, and continues until that employment ceases. In the first place, where the employment is such as is shown in this case— that of working a shoddy machine in a mill,—there is a legal duty upon the master to provide his servant with a reasonably safe place to do his work in, and reasonably safe machinery to work with or upon. In other words, the master undertakes that if the servant shall be reasonably careful in his service, he shall suffer no damage or injury from a defective or unfit place to work in, or defective machinery to work with. There is also the corresponding duty on the part of the servant to obey the master’s orders in the course of his employment^ and so to conduct himself in it as to earn the wages agreed upon ; that is, do his duty by his master. He, also, generally, undertakes, in legal contemplation, that he has competent knowledge of the employment he enters upon. This latter, however, is not an element of the contract between master and servant in a case where the latter has no knowledge; but a different one exists, which is that, his ignorance considered, he will do the best he can. Again, some employments are in themselves dangerous, more or less; and others have no appreciable danger attending them. I have spoken of them before. In the case of the former, or the dangerous ones, the rule is that, where there is no agreement to the contrary, the servant takes the risk upon himself of his employment; that is, he takes upon himself, and impliedly agrees not to hold the master responsible for, the usual risks of the employment he enters upon, which includes the common casualties of the business, such as by experience have been found to be attended upon the occupation without the actual fault of any one, and also the negligence of fellow-servants. But he takes upon himself no other risks of the service, primarily. If, however, there shall appear to him, from his own observation, or by being pointed out by others, any other risks which are not the common ones of the employment, but are the result of the breach of duty on the part of the master, of which I have spoken, (that is, to furnish a safe place to work in, and safe machinery to work with), he cannot remain in the service, and hold the master responsible for injury to himself resulting from such breach of duty, because the knowledge of the peril, and continuance in service afterwards, and notwithstanding such knowledge, is the same, in effect, as if he had known it at the time he took the employment, in which case the contract of service would be taken to include the risk, the same as if expressly mentioned between the parties. Why is this ? Because, in case of such necessary danger, he may withdraw himself any time from the employment, and thus secure himself against any such risk. If, with a knowledge of it, he still remains in the service, he will have no right to call upon the master for compensation if injury befall him by reason thereof. This is the general rule. But this general rule is subject to modification by circumstances. For example, if, upon discovering or being informed by others of a danger arising, say, from defect in machinery he is working with, which defect his pre vious want of experience with machinery (which want his master was acquainted with at the time of the employment) did not enable him to understand, he apply to the master, or his recognized agent over his machinery, to have such defect remedied, who promise to make the defeat good, he may remain in the service, without losing his right of action against his master for injury resulting from that defect, if in the meantime he observes that reasonable care to protect himself against such injury which ordinarily prudent men take of their persons when employed in a dangerous service of like nature; that is to say, if the defect increases the danger of the service, the circumspection or caution of the servant with reference to. his safety of person must be increased inproportion to the increase of danger. If the defect be not remedied in a reasonable time, the servant, from the end of that time, is in the same situation precisely as if he had known of the defect in the first instance; that is, he would be held to take the risk of it if he chose to continue in the service. And we further say that, whether an actual promise to repair the defect is made or not, yet, as the duty on the master, of which I have spoken, is to provide safe machinery for the servant to work with? notice of the fact that the machinery is defective, and therefore dangerous, is sufficient to require the performance of that duty; and the servant would be justified in relying upon the belief that it would be done, to the same extent as if an express promise to do it were given. Otherwise what is said about the right of a servant to rely for his safety upon the common-law duty of a master to provide a 'worker in an employment with reasonably safe means of doing his work, either of place to work in, or tools or machinery to work with, would be unmeaning and misleading. But in this case there is testimony before you, on the part of the plaintiff, by his own oath, that he gave notice of the defect, from which it is claimed this accident happened, to Ainsworth, who is shown to have been the defendant’s engineer, having a general superintendency of the machinery in the mill for repairs, as well as other things; and that he promised him to have the machine repaired, and the defect made good. As this statement of the plaintiff is denied by Ainsworth, you must decide which of them you will believe, taking into consideration that both parties are interested,— the one to gain your verdict, and the other to screen himself from liability over the defendant, if he made such promise; and the accident, which caused the plaintiff the loss of his best hand, was in fact the result of his default alone, and not of the actual want of due care on the plaintiff’s part.

A few more remarks, and I shall say no more with respect to the law applicable to this case. The' difference between this case and any other of which we have knowledge is this : that whereas, in other cases, persons seeking employment, and who are given it, are usually, in case of employment upon machines, such as have had at least some previous experience with them, ando are aware of the contingencies of danger that attend their use, yet the plaintiff here, as was known to the defendant by information given him by the plaintiff, (for that is admitted by his counsel,) was totally ignorant upon the subject of the working of machinery. The defendant undertook to instruct him, by placing his agent, Walraven, over him, to teach him all about the machine, how he should operate it, and the danger attending the service. The plaintiff says that, when the instruction ended, he thought himself able to properly work the machine. Was he, in fact, so able ? To decide this, you must not go beyond the proof in the case, and you must weigh his own assertions that he was, against any proved facts that may incline you to the opinion that he was not; for, though a young and therefore inexperienced man, he is not to have the benefit of want of proper instruction (if there is any proof at all of such, or circumstances, established by testimony, to show it) unless you are satisfied, from the proof in the case, that the defendant was not justified in believing that he had done his duty by him. If he did all that most other men under like circumstances would have done, that is enough.

You have heard a great deal about the guides of the main belt, and their office or purpose, about which purpose there is no controversy. But there is a great deal about whether the stop-guide was in place or not while the defendant worked at the machine. The testimony is conflicting, and you must form your opinion upon that which you think is best entitled, all things considered, to your credence. If the handle of the apparatus, used to shift the main belt over from the tight to the loose pulley, was, at the time the plaintiff was rescued from the machinery, found to be turned as was proper to throw the belt off such tight pulley, and, as the defendant insists he has proved, the guide-bolts or pins were both in place, then the main belt could not have shifted over to the tight pulley to set the machine going again. The accident to the plaintiff must then have happened because he thrust his hand in to remove the clog in the cylinder teeth before the cylinder itself had ceased to revolve. On the contrary, if the stop-pin was not in place, and had not been since the plaintiff had gone to work at the mill, and he had pushed off the belt from the tight to the loose pully by the means he had always used, and others had used before .him, for that purpose, and the revolving cylinder had stopped,— and the cylinder belt at rest was sufficient evidence of that fact, if you believe it was rest,—then the accident could have been caused in no other way than by the shifting of the main belt from the loose to the tight pulley for want of the right-hand or stop pin. If the plaintiff, in the first suggestion, attempted to free the cylinder teeth of the shoddy lumps before that part of the whole machine had stopped revolving, the accident was caused by his own want of proper care, and he cannot recover; but, if it happened from the cause he alleges, then there was no want of care on his part, but breach of duty on the part of the defendant to furnish him with safe machinery to work upon, and he is entitled to y.our verdict. It is proper that I should further say to you that if the experience the plaintiff appears by his testimony to have had with the shifting of the belt from the loose to the tight pulley (which as I remember, was that of, at most, three occasions only in two weeks) was such as should have led him to expect danger from shifting at that time, then his act of attempting to free the cylinder without first throwing off the cylinder belt itself would be negligence or want of due care on his part, debarring him from right to recover. But it is also proper to say that there is no evidence before you that any one ever threw off the cylinder belt to stop the cylinder from revolving before they proceeded to free the teeth from tangled or matted shoddy materialbut, so far as you have proof, the cylinder teeth were always unclogged by just such process as the plaintiff attempted to use on the occasion of the accident. But if you believe, from the testimony, that he was so careless, in doing so, as to bring on the trouble he might have avoided by using proper caution in so doing, then the fault was such want of caution, and not the default of the defendant.