Strawbridge v. Bradford

(á) A delivery boy, thirteen years and four months old, employed in a mercantile establishment, was injured upon an unguarded freight lift by which he was required to ascend and descend frem one floor to another. 1. There being testimony given by persons acquainted with the construction of the lift, that it was not a reasonably safe one for the transportation of boys, the question of negligence of the defendant was a question of fact for the jury. 2. A boy’s capacity is the measure of his responsibility; and in this case, the plaintiff not having attained the age when sufficient capacity to be sensible of danger and to avoid it is presumed, the question of contributory negligence, under the evidence, was also a question of fact for the jury.

No. 74 January Term 1889, Sup. Ct.; court below, No. 464 June Term 1888, C. P. No. 1. On March 31,1888, Edward T. Bradford, a minor, by James W. Bradford, his father and next friend, brought statutory trespass against Justus C. Strawbridge and Isaac H. Clothier, trading as Strawbridge & Clothier, to recover damages for personal injuries caused by tbe alleged negligence of tbe defendants. Issue. At tbe trial on October 12,1888, the material facts developed were substantially as follows: In the latter part of 1887, the plaintiff entered the service of the defendants as a delivery boy. When going from one floor to another in the building, except when sent by their chief to the second floor for tickets, when they might use the stairway, the boys were required to use a freight lift or elevator. This lift consisted of a platform with four posts, one at each corner. Two sides, the north and west, were inclosed by wire screens; on the other two sides, for convenience in loading and unloading goods, there were no guards whatever. The lift ran in a shaft or well, the sides of which were ten and one half inches from the edge of the platform, except at every floor unbeveled sills projected eight and three quarter inches into the well. There was testimony that the lift was not a reasonably safe one for the transportation of delivery boys. On February 22, 1888, the plaintiff, then thirteen years and four months old, went upon the lift to go to an upper floor. He went for Ms own purposes, but, as he testified, with the permission of his superiors. There were four others on the lift, and the plaintiff stood at the unprotected corner. The man running the lift saw the boy, as he admitted, but did not warn him of his danger. When the platform reached the-floor, the plaintiff’s foot, extending beyond the platform, was caught and crushed by the projecting sill. Witnesses for the defendant testified that the plaintiff on this occasion was using the lift without permission, and in so doing was disobeying positive orders; and also, that except when he had a delivery bundle he was at liberty to use any one of four stairways. Testimony was also introduced to show that such freight lifts as that causing the injury were used generally in like establishments. The court, Biddle, J., submitted the case to the jury with instructions which were in accordance with the answers to defendants’ points, as follows: 1. If the jury believe that the elevator, although susceptible of being made safer, was such as is in general use for the same purposes and in establishments similar to Strawbridge & Clothier, the plaintiff cannot recover, and the verdict must be for the defendants. Answer: I will say to that,' that if you believe that it has been in evidence that the safeguards suggested here by the plaintiff were not generally employed in similar establishments when used in the same way, or believed by their proprietors to be desirable or useful, the defendants would not be guilty of negligence in not emjfioying them. The second, third, fourth, fifth, and sixth points I will read to you, as I purpose to answer them all together. 2. Even if the elevator were not such as is in general use for the same purposes, and in establishments similar to the defendants’, yet, if it could be safely used by standing upon the guarded sides, and the jury believe that the defendants established rules of which the plaintiff had notice, not to stand on the exposed sides, and that the plaintiff was hurt because he disobeyed, he cannot recover, and the verdict must be for the defendants. 3. If the jury believe that plaintiff was ascending in the elevator not upon- business for his masters, but upon his own errand, and that he could have used one of the four staircases, he cannot recover, and the verdict must be for the defendants; 4. If the jury believe that plaintiff knew and disobeyed rules of the establishment by leaving the delivery-clerk’s desk without permission, not upon the errand of his employer, and was hurt whilst so doing, he cannot recover, and the verdict must be for the defendants. 5. In the case of an adult the slightest negligence contributing to an accident absolutely bars recovery, and if the jury believe that plaintiff knew before the accident that if he allowed his foot to project beyond the elevator he was likely to get hurt, and that he was injured because he did so, he cannot recover, and the verdict must be for the defendants. 6. The plaintiff having testified that he knew before the accident that the part of the elevator where he stood was unprotected by guards, and that the sill projected into the shafts, and that if part of his body were projected beyond the elevator it would be injured, and his foot was so projected, and caught, he was guilty of contributory negligence, and the verdict must be for the defendants. Answer: I would answer those points in this way: Your determination of these questions should be governed by the amount of discretion that a boy of this age should possess. For instance, if a child of four years of age was allowed access to a place where a slight neglect would cause it severe injury, the mere fact of warning the child in advance to sit perfectly still in one place would not relieve from responsibility. You must guard against indiscretion of a child of that age. The question here is, whether, considering the age of this child and the fact that he was allowed to use this machine on certain occasions—he was not forbidden to use it because it was dangerous but because he had no bundle in his arms and without Mr. Steele saw where he stood—he was guilty of such negligence as would relieve the defendant of responsibility. 7. Under all the evidence the verdict must be for the defendants. Answer: That I refuse.1 The jury returned a verdict for the plaintiff for 1700. Judgment having been entered, the defendants took this writ assigning as error: 1. The refusal of defendants’ seventh point.1