Honor v. Albrighton

‘1. A lad about thirteen years old was employed as a slate-picker in a coal breaker. Another lad who was attending the machinery called to him to bring to him the oil-can, and he left his post, and in taking the can fell into a pair of rollers breaking coal where he was severely injured. It appeared that the rollers were covered with a box upon the top of which was an opening covered by a plank which was displaced at the time of the accident, and was so often before with the knowledge of the injured boy. Held, that the provision in the Act of March 3d 1870, that all machinery where boys work shall be properly “ fenced off” was intended to mean properly protected, and that in providing this cover for the rollers the employer did his whole duty under the act. Held, further, that if the cover was unnecessarily removed without the fault or knowledge of the employer, through the negligence of one of the employees, there could be no recovery according to well-settled principles. Held, further, that the conduct of the boy presented a case of contributory negligence. 2. Pee Cueiam.' — It was not the intention of the act to change these just and reasonable rules.

Error to the Court of Common Pleas, of Luzerne county: Of January Term 1878, No. 195. Case by John Honor against John Albrighton and others, doing business -as Albrighton, Roberts & Co., to recover damages for injuries to the minor son of the plaintiff, alleged to have been caused by the negligence of defendants. It appeared at the trial, that Edward Honor, the minor son of the plaintiff, was, in 1871, employed at the defendants’ coal breaker at Plymouth, Luzerne county, as a slate-picker. In breaking coal it is passed through rollers and broken into the various sizes required for use, and after being broken it is shot down chutes to storing places, whence it is loaded into the cars. Boys stand by the sides of the chutes, and, as the coal passes by, pick out the slate therefrom. This was the daily employment of young Honor, and while thus engaged, on the 15th of September 1871, at the lower portion of the breaker, there was just above him a pair of rollers called the “monkey-rollers.” His place as a slate-picker was about twenty feet below these rollers, and did not in any way expose him to danger from them. The lad, who was about thirteen years old, was engaged at his usual work, when a boy named Hobbs, who was attending the machinery above, called to him loudly to bring him the oil-can, which was by the stove near Edward to be kept warm. The latter seized the can and ran up rapidly towards Hobbs, when, just before he reached him, he stepped into the monkey-rollers and his leg was caught and crushed by them. The opening over the small rolls was six inches wide, and two feet eight and a-half inches long; this opening was secured with a plank fitting into the opening, and which could not be removed except by lifting it up. When the plank was down there was entire security against any danger from the rolls. The plank was intended to be removed, if the rolls became choked, for the purpose of clearing them out. The plank was displaced at the time of the accident, as it frequently had been before, to the boy’s knowledge. The Act of March 3d 1370, Pamph. L. 3, making provision for the health and safety of persons employed about coal mines, enacts, in the 13th section that, “ all machinery in and about the mines, and especially in the coal-breakers, where boys work, shall be properly fenced off;” and the 24th section provides: “That for any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action shall accrue to the party injured, for any direct damages he may have sustained thereby, &e.” In the general charge, the court, Harding, P. J., inter alia, said: “ But conceding that the statute amounts to more than a reiteration of the common law, with reference to the right of an employee who has been injured about one of these collieries, and who brings an action to recover compensation, still, in my judgment, it does not absolve him from the same rule of conduct in connection with the subject-matter of the injury that applied before. Contributory negligence on his part would be as fatal to the success of his action to-day, as it would have been before the statute had existence. “ Assuming the colliery in question to have been dangerous, assuming further, that these defendants were guilty of negligence in not having complied with all the provisions of the act to which reference has been made, still [if the boy, Edward Honor, knew, as he says he did, of the condition of these rollers, and of the danger in approaching them ; but nevertheless, at the call of his co-einployee, hastened to deliver the oil-can, an errand wholly outside of his own duty, and injury befell him, as has been described, his father cannot recover in the present action. The conduct of the boy cannot be regarded as less than negligent.] [We have then only to say to you that the plaintiff is not entitled to recover, and that your verdict must be for the defendants.] The verdict was for defendants, and after judgment thereon plaintiff took this writ, alleging that the court erred in the portions of the above charge included in brackets.