Gillen v. Rowley

In an action to recover for personal injuries charged to the defendants’ negligence, the plaintiff’s testimony showing that, being about thirteen years of age, he was employed by the defendants in a work neither difficult nor dangerous, but was injured while voluntarily interfering with a machine in the exclusive charge of another employee and undertaking to do something not within the scope of his employment, it was not error to direct a verdict for the defendants.

APPEAL BY PLAINTIFF FROM THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 188 January Term 1890, Sup. Ct.; court below, No. 714 March Term 1888, C. P. No. 4. On March 19, 1888, Francis Gillen, by his father and next friend, Michael Gillen, brought trespass against Salmon B. Rowley and Francis W. Kennedy, trading as the Hero Glass Works, to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. Issue. At the trial on January 15, 1889, the testimony was to the effect that the plaintiff, a boy thirteen years of age, was employed by the defendants, in their glass works, to pick out from a box placed on the floor unworked tin caps used for the covers of glass fruit jars, and to place the caps in a box upon a table, so that they could be within reach of an employee operating the finishing .machine. There was no evidence that the plaintiff was directed or expected to operate the machine. On June 29, 1883, while the operator was out of the room, and the machine was at rest, the plaintiff attempted to remove a cap which was caught in the machine, and as he was doing so the machine started and brought the punch down upon his hand, crushing the hand so that amputation was necessary. On cross-examination, the plaintiff testified: Q. In putting up caps, you took the caps out of one little box and put them in another box ? A. Yes, sir. Q. When Joe Reilly took you into tl e room where the work was going on, what did he tell you to do ? A. Just told me to work at that machine. Q. Pointed to the place for you to work? A. Yes, sir. . Q. What did he tell you to do? A. Nothing. Q. You said yesterday he told you to do something. He told you to pick up caps. A. No, sir; the other boy told me to do that. Q. The boy running the machine? A. Yes, sir. Q. Joe Reilly pointed to you where you were to work, and the boy working the machine told you to do what? A. Put caps in this box. Q. What kind of a box were you to take the caps out of ? A. A large box. Q. Where did it stand ? A. Right at the side of the machine. Q. The caps are those things shaped like a deep saucer? A. Yes, sir. Q. What you were told to do was to take these caps out of a box which stood on the floor near the machine, lift them up and put them in a little box which stood on a shelf by the machine? A. Yes, sir. Q. That was all? A. Yes, sir. Q. You were not asked to run the machine, were you? A. No, sir. Q. Where did the other boy stand who ran the machine? A. He sat on the side of the machine. Q. He had a stool and sat there? A. Yes, sir. Q. You were about three feet from him, were you not — two or three feet? A. I don’t believe I was two or three feet from him ; I can’t exactly say. Q. About as far from me to this gentleman here ? A. Yes, sir. Q. There was a box on the floor, and you took the caps up from that box and put them in a box that stood beside the boy; then he took the caps out of the box, into which you had put them, and put them into a slot in the machine? A. Yes, sir. Q. How long did you do that? A. I can't exactly say how long. Q. Do you remember the name of the boy who ran the machine? A. No, sir; it was a small boy, about the size I was then. Q. He got up and went away? A. Yes, sir. Q. Went to the water-closet ? A. I don’t know where he went, . Q. He got up and left the machine? A. Yes, sir. Q. He stopped the machine, didn’t he? A. Yes, sir. Q. It was perfectly'quiet when he left? A. Yes, sir. Q. And while he was away you got into his place? A. No, sir; I was not near it. Q. Where did you go? A. I didn’t leave my place. One of the caps got caught. Q. Didn’t you put it into the machine? A. No, sir; I didn’t know nothing about the machine. Q. The machine was perfectly still? A. Yes, sir. Q. The boy stopped it when he left it? A. Yes, sir. Q. Will you explain how it was that you started it again? A. I didn’t start it. It started itself when I put my hand in. I come this way on the back of the machine, and when I put my hand in to take the cap the machine started. Q. You put your hand in? A. Yes, sir. Q. He didn’t tell you to put your hand in? A. No, sir; nobody told me to put my hand in. The court, Arnold, J., charged the jury as follows: This boy was injured outside of his employment, not in it. The testimony shows that he was to pick up caps, not to work the machine. This case is a question of law and not of fact. The verdict must be for the defendants. —The jury returned a verdict in favor of the defendants. A rule for a new trial having been discharged, judgment was entered on the verdict, when the plaintiff took this appeal, specifying that the court erred in directing the jury to render a verdict for the defendants.