Ensley v. Sylva Lumber & Manufacturing Co.

Waleer, J.,

after stating the ease: The plaintiff alleges that he was young and inexperienced, not having worked in a mill before; that for this reason his father had requested the defendant to give him work to do outside the machinery room, which the latter promised to do, but which it failed to do, but, on- the contrary, he was ordered to work in the building and was required to tail at a moulding machine, which means that he had to receive the lumber from the moulder after it was dressed by being passed through it. In operating the machine and doing the work of tailing, it was proper and usual to stand about 4 feet from it; but on the day of the injury a large splinter or faulty piece of lumber caused the bits or knives to grip it too tightly; the splinter hung on the knives and stopped the lumber. At this time he called to Davis, who stopped the feed and told him to loosen the pressure bar over the knives, which he did, and then put his hand in and reached for the splinter to remove it, when the suction from the pipe that carries the shavings to the boiler drew his hand to the knives, and he was badly cut by them. He says: “I did not know the knives were there, nor did I know the suction pipe was there.” There was no shield or hood over the knives.

The case has been argued before us upon the theory that there was no negligence of the defendant, and that plaintiff assumed the risk of his employment, or was guilty of contributory negligence when he undertook to stop the machine and thrust his hand into it for the purpose of doing so, and further, that he was not acting within the scope of his duties when he did so.

It is the duty of the master to exercise due care in furnishing his servant with a reasonably safe place to work and reasonably safe and proper machines, tools, and appliances with which to do the work, and, in the case of youthful or inexperienced employees, this further duty rests upon him: Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or inexperience, is ignorant of or unable to appreciate such dangers, it is his duty to give him such instruction and warning of the dangerous character of the employment as may reasonably enable Him to understand, its perils.. But tbe mere fact of tbe servant’s minority-does not charge tbe master witb tbe duty to warn and instruct him, if be in fact knows and 'appreciates tbe dangers of tbe employment; and generally it is for tbe jury to determine whether, under all tbe circumstances, it was incumbent upon tbe master to give tbe minor, at tbe time of bis employment, or at some time previous to tbe injury, instructions regarding tbe dangers of tbe work, and bow be could safely perform it. It is tbe duty of a master who employs a servant in a place of danger to give bim such warning and instruction as is reasonably required by bis youth, inexperience, or want of capacity, and as will enable bim, witb tbe exercise of reasonable care, to perform tbe duties of bis employment witb reasonable safety to himself. 26 Cyc., 1114-1178; Turner v. Lumber Co., 119 N. C., 387; Marcus v. Loan, 133 N. C., 54; Walters v. Sash and Blind Co., 154 N. C., 323; Fitzgerald v. Furniture Co., 131 N. C., 636; Bolin v. Tobacco Co., 141 N. C., ‘ 300; Leathers v. Tobacco Co., 144 N. C., 350. Those cases fairly illustrate tbe rule as it has been applied by this Court, and tbe Fitzgerald case would seem to be essentially tbe same in its salient facts as this one, and if not entirely so, there is a sufficient likeness between them to make it a controlling authority. Tbe authorities elsewhere are in harmony witb our decisions.

“Tbe master may also be guilty of actionable negligence in exposing persons to perils in bis service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in tbe employment of infants. Tbe duty of tbe employer to take special cautions in such cases has sometimes been emphatically asserted by tbe courts.” Cooley on Torts, p. 652.

“Tbe law puts upon a master, when be takes an infant into bis service, tbe duty of explaining to bim fully tbe hazards and dangers connected witb tbe business, and of instructing bim bow to avoid them. Nor is this all: tbe master will not have discharged bis duty in this regard unless tbe instructions and precautions given are so graduated to tbe youth, ignorance, and inexperience of tbe servant as to make him fully.aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult.” Thompson on Negligence, 918.

“When the negligent act of the defendant naturally induced or offered opportunity for the subsequent act of a child, being of a character common to youthful indiscretion, and which, concurring with the defendant’s earlier wrongful act, produced the injuries complained of, the defendant will in general be held liable. Children, wherever they go, must be expected to act upon childish instincts and impulses. — a fact which all persons who are sui juris must consider, and take precautions accordingly. A person who places in the hands of a child an article of a dangerous character and one likely to do an injury to the child itself or to others, is liable in damages for injury resulting which is a natural result of the original wrong, though there may be an intervening agency (of the child) between the defendant's act and the injury.” Bailey on Personal Injuries, 1291.

It was said in R. R. v. Fort, 84 U. S., 553, in which a parent was suing for injuries to his son, who wa§ 16 years old: “This boy occupied a very different position (from an adult). How could he be expected to know the peril of the undertaking? He was a mere youth without experience, not familiar with machinery. Not being able to judge for himself, he had a right to rely on the judgment of Collett, and doubtless entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a' thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so.”

It appeared in Lynch v. Nurdin, 41 E. C. L. Rep., 422, that the defendant’s servant had left a horse and cart unhitched on the street, and plaintiff, with other children, was playing with the horse and climbing into the cart, when the horse moved away and injured him. The defendant set up the same defense as does the defendant in this case, that the minor had brought tbe injury upon bimself by bis own negligence and reckless act, but Lord Denman, tbe Obief Justice of tbe King’s Bench, after discussing tbe careless act of leaving tbe borse unbitcbed, said: “But tbe question remains, Can tbe plaintiff, tben, consistently witb tbe authorities, maintain bis action, having been at least equally in'fault? Tbe answer is that, supposing that fact ascertained by tbe jury, but to this extent, that be merely indulged tbe instinct of a child in amusing bimself witb tbe empty cart and deseited borse, tben we think that tbe defendant cannot avail bimself , of that fact. Tbe most blamable carelessness -of bis servant having tempted tbe child, be ought not to reproach tbe child witb yielding to that temptation. He has been tbe real and only cause of tbe mischief. He has been deficient in ordinary care; tbe child, acting without prudence or thought, has, however, shown these qualities in as great a degree as be could be expected to possess them.”

Tbe general principle is well stated and tersely applied in Iron Co. v. Green, 65 S. W. Rep. (Tenn.), 399, where .the same defense was made, as here, that tbe plaintiff’s wrongful employment of tbe child was not tbe proximate cause of tbe injury, and tbe Court said: “Defendant bad no right to employ this minor. While in its employment on its premises and foolishly playing witb panels, tbe property of tbe company, too heavy for bis strength to bold, yet witb boyish beedlessness disregarding this fact, this injury is inflicted upon him. Had be not been employed by this defendant, theie is no reason to suppose that be would have been on its premises when tbe temptation occurred to him to prank witb these panels to bis serious hurt. In each of tbe propositions presented by tbe respective parties to tbe suit we think there is causal'connection between tbe employment and tbe injury.”

Of course, we do not bold that tbe employment of tbe boy was negligence per se merely because be was under age, but tbe principles of those cases apply for tbe reason that, as tbe evidence shows, tbe father of tbe boy bad warned tbe defendant, not only of bis youth, but of bis inexperience as well, and exacted a promise that be would not be employed in tbe building about dangerous machinery, and after receiving this precautionary request and agreeing to comply with it, defendant violated the promise (Hanie v. Power Co., 151 N. C., 503), and, besides, exposed this inexperienced youth to the dangers of the machinery without any instructions as to what they were or as to how he could avoid them. It cannot, therefore, be heard to say, if we follow established principles in the law of negligence, that the injury is to be imputed to his own fault, when his alleged negligent act was directly induced by its own negligence in failing to take proper care of him when thus exposed to danger.

Discussing the analogy between the duties of employers to youthful employees and the- duty owing to those who are inexperienced, 1 Shearman and Redfield on Negligence (6 Ed.), sec. 219 and 219 a, thus states the rule applicable to both of these relations: “It is the duty of one who employs young persons in his service to take notice of their apparent £tge and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they ought not to be exposed. This is a duty which cannot be delegated; and any failure to perform it leaves the master subject to the same liability, with respect to such risks, as if the child were not a servant. For this purpose, the master must instruct such young servants in their work and warn them against the dangers to which it exposes them, and he must put this warning in such plain language as to be sure that they understand it and appreciate the danger. . . . The principles governing the employment of minors are, to a large degree, also applicable to the employment of inexperienced, ignorant, feeble, or incompetent servants. A master having notice of any such defect in a servant, no matter what his age may be, is bound to use ordinary care to instruct the inexperienced or ignorant and to avoid putting the feeble to work too heavy for their strength, and generally to refrain from exposing them to risks which they are not fit to encounter. When the master has notice of such ignorance or inexperience on the part of the servant as would make the ordinary risks of the business especially perilous to that servant, be must give tbe servant explicit warning of tbe danger, and not allow bim to undertake tbe work without a full explanation of its perils.” •

It will be seen, therefore, that tbe duty of tbe employer in both cases is practically tbe same. If tbe particular act of removing tbe splinter so as to start tbe machine again was not strictly within tbe scope of 'the boy’s duty, it was not such a departure from it as to disconnect or insulate tbe prior negligence of tbe defendant from tbe injury, and it was due altogether to the youth and inexperience of tbe boy and tbe lack of proper instruction as to tbe dangers to be anticipated and avoided in handling tbe moulder. “Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, or was not instructed as to tbe danger attending tbe act be was told to do, tbe question whether it was a reasonably safe place to work or whether tbe failure to warn bim of tbe danger was tbe proximate cause of tbe injury, should be submitted to tbe jury. Tbe evidence that there was a safe way to do this act did not warrant tbe withdrawal of tbe case from tbe jury, in view of tbe evidence in tbe case. When more than one inference- can be drawn as to tbe negligence, or tbe proximate cause, it is for tbe jury to determine. Dorsett v. Manufacturing Co., 131 N. C., 254; Marks v. Cotton Mills, 138 N. C., 401.” Holton v. Lumber Co., 152 N. C., 68.

We have carefully examined tbe charge of tbe court, and find it to be in strict accordance with tbe law of tbe case as now declared by us. Tbe court fully instructed tbe jury as to tbe duty of tbe defendant toward tbe plaintiff, and as to tbe latter’s measure of duty to himself, considering bis age and capacity for taking care of himself and avoiding danger. Tbe charge, in all'respects, was “sound and judicious” and presented tbe case to tbe jury clearly and correctly in every conceivable phase of it. It was for tbe jury to find tbe facts and apply tbe law as given to them by tbe court, and we can see no reason for interfering with tbe result.

No error.