The opinion of the court was delivered, May 11th 1869, by
Williams, J.This was an action brought, under the statute, by the parents of a minor son, to recover damages for his death, alleged to have been occasioned by the negligence of the defend*61ant. The judge before whom the cause was tried ordered a judgment of nonsuit to be entered, and the court in banc refused to set it aside. As no opinion was delivered in the case, we are left to conjecture the ground on which the nonsuit was sustained. But it must have been either because, in the opinion of the court, the defendant was not shown to have been guilty of any negligence, or, if he was, that the minor’s own negligence contributed to his death. Can the judgment of nonsuit, then, be sustained on either of these grounds ?
It is well settled that where an injury happens to a servant in the course of his employment, the master is responsible if it was occasioned by his negligence. If it was the result of the hazardous nature of the employment, without any fault on the part of the master, he is not liable; but if his negligence was the direct and proximate cause of the injury, he is responsible, whether the employment was hazardous or not. These principles are so plain and familiar that they require no argument or authority for their support. Was there, then, any evidence tending to show that the defendant was guilty of negligence ? The plaintiffs’ son, a lad of about fourteen years of age, was employed by the defendant in his carding and spinning-room in the fourth story of the building where he carried on the business of manufacturing woollen goods. He was working with the stripper at one of the cards, and while carrying an armful of waste from the carding-machine into the waste-room, he fell through an open trap-door or hatchway, a distance of sixty feet, to the bottom of the building, and was killed. The hatchway was in the carding and spinning-room, immediately in front, and within six inches of the door-way leading to the waste-room. It was about five feet square, and in going in and out of the room the employees had to pass over it — there was no other passage. There was no railing or protection of any kind around the hatchway, the trap-doors of which were ordinarily kept closed, on a level with the floor, except when it was in use. All the witnesses describe it as dangerous, and from its location, size, and proximity to the door, it could not have been otherwise. Was it not, then, the duty of'the defendant to have had a railing or other protection around it ? and was he guilty of no negligence in permitting it to remain open— without any notice or warning — to the hazard of the lives and limbs of his employees ? Had the court a right to assume that he was under no obligation to put any guard or barrier around it, or to give any notice or warning when it was open for use ? If the defendant was not absolutely bound to put up a railing around the hatchway, was it not his duty to have a watchman stationed there to guard it whenever it was open, and give notice of the danger ? And was it not negligence to intrust the duty of opening and using it to a lad of so little experience and *62discretion as the picker-hoy ? Ho attempt was made on the argument to show that the defendant was under no obligation to guard the hatchway, nor was it alleged that -the death of the minor was not occasioned in part by his negligence. If the nonsuit was granted on the ground that there was no evidence of negligence on the part of the defendant, it was clearly erroneous. Was there, then, such evidence of negligence on the part of the deceased as to justify the court in withdrawing the case from the jury and determining the question as a matter of law ? If it had been shown that his death resulted from the hazardous nature of his employment, then the court would have been justified in withholding the case from the jury; but it is not pretended that this was the cause of his death. He was not working at the hatchway at the time of the accident. If he had been lowering the waste, and by some mishap had fallen through the hatchway, then his death might be regarded as an accident, or result of the dangerous character of the business in whieh he was engaged, and as one of the risks which he or his parents assumed when he entered into the service of the defendant.
Again: if it had been shown that his misconduct contributed to his death, or that it arose from the omission of a duty defined or prescribed by law, then there would have been no question for the jury. But the evidence did not show that he was guilty of the omission of any defined duty, or of any misconduct whatever. On the contrary, he was in the discharge of his duty, and just where that required him to be, at the time he was killed. If there was anything in his conduct to prevent a recovery, it must have been negligence. This was his only fault, and negligence is ordinarily a question for the jury. It is always a question for their determination when there is any doubt as to the facts, or the inferences to be drawn from them. But the evidence may show a case of such clear negligence arising from obvious disregard of duty and safety, as to make it incumbent on the court to determine it as a question of law: Pittsburg and Connellsville Railroad Company v. McClurg, 6 P. F. Smith 294. Was this, then, such a case ? It was if, as suggested on the argument, the deceased, in the broad daylight of a summer afternoon, with his eyes open, deliberately walked into an open hatch, and fell. But this leaves out of view, and wholly ignores, all the surrounding and attendant circumstances. It is true that the accident occurred in the broad daylight of a summer afternoon, but there is nothing to warrant the inference that the deceased saw the open hatchway. It is evident that he did not see it; and the only question is whether his failure to observe it arose from negligence or carelessness. What, then, are the facts as shown by the evidence ? The card behind which he worked was about twelve feet from the hatchway. The wool-box at the side of the room was seven feet *63high at the hack and three at the front, and extended from the hatch to within two feet of the card. When the hoy was at work it was impossible for him to see the hatch — he could see it only when he came around the comer of the wool-box. According to the testimony of the stripper with whom he worked, “ He had swept around the card, and gathered up an armful of waste; he took it across the trap-door into the waste-room; came back for more; gathered up another armful and started off for the waste-room, and fell down the trap; when he crossed the trap and came back, it was as speedily done as he could walk back and pick up the armful of waste ; scarcely no time elapsed from the time he crossed the trap-door until he fell.” While he was gathering up the last armful of waste, the picker-boy opened the hatchway. He says: — “ The accident happened about half-past five o’clock in the afternoon; I was tying up waste to take down stairs — down the hatchway; Johnson brought an armful of the waste to the waste-room; he went back to take another, and then he fell; I was in the picker-room when he fell; I had opened the west door of the hatchway; the east door was down; I had drawn a bag of waste and left it in the door, and went back for another; it was then he fell; I gave no notice that I had opened the trap-door; there was no one helping me to lower the waste; on other occasions there was always some one helping me; * * * the trapdoor is the same in all the stories; * * * the business could not be carried on without the hatchway ; there was no particular time fixed for lowering the waste down the hatchway; I always did it between five and six o’clock; sometimes at five o’clock, sometimes at half-past five o’clock, and sometimes later, just as I had the time.” All the machinery was in operation, except the card at which the deceased worked. Was this, then, such a clear case of negligence as to justify the court in declaring it such as a matter of law ? Was negligence the only and necessary inference from the facts ? If no other possible inference can be drawn from them, it was the duty of the court to declare, as a matter of law, that the deceased was guilty of negligence. But if any other inference could be drawn from them, depending on the view which might be taken of them, then the evidence ought to have been submitted to the jury. The deceased, as we have seen, immediately before the accident had passed over the trap-doors, when they were closed, in safety. Had he any reason for supposing that they had been opened while he was gathering up an armful of waste ? And if not, was it negligence on his part if he did not stop and look before he came to the hatchway ? Would he readily have seen the open hatchway with an armful of waste ? Would it not depend upon the bulk and the manner in which he was carrying it ? Might it not have been so held that the open trap-door did not come within the line of his vision ? And if so, *64was there any negligence in his not seeing that it was open ? If these, and other questions which might he asked, are susceptible of more than one answer, according to the view taken of the facts, then the case ought to have heen submitted to the jury. Whenever there is any doubt as to the facts, it is the province of the jury to determine not only what they are, but what are the proper inferences to be drawn fram them. Without intending to intimate what the finding of the jury should be, we are clearly of the opinion that the court erred in withholding the case from them, and ordering a judgment of nonsuit.
Judgment reversed, and a procedendo awarded.