Walkowski v. Penokee & Gogebic Consolidated Mines

Grant, C. J.

(after stating the facts). 1. Ryan was 17 years and 5 months old at the date of his employment. It is urged that it is negligence to employ one so young in such a responsible position, or, at least, that it is *632 a question for the jury to determine. Young Ryan had had an experience of nearly 2 years in a similar position at another mine, where he had performed his work satisfactorily. He had performed his work satisfactorily, and without accident, for between 7 and 8 months at the defendant’s mine. It is conceded that he had sufficient physical ability, and was possessed of ordinary intelligence. Plaintiff’s own testimony shows that he had the “appearance of being older than he was.” Plaintiff cites no authorities to sustain his contention. The wo'rk was not difficult. There is nothing to show that it would be safer to employ for this work a person who was older. The fact that he had done his work safely and satisfactorily for over 7 months is the best proof of his competency. There is no presumption of law that one 17 or 18 years of age cannot do such work as safely and as well as one older. There is no authority or reason in the proposition that one of that age is an improper person to employ for such work. The authorities appear to be uniform against the proposition. Sutherland v. Railroad Co., 125 N. Y. 737 ; Kansas, etc., Coal Co. v. Brownlie, 60 Ark. 582 ; Neal v. Gillett, 23 Conn. 437 ; Molaske v. Coal Co., 86 Wis. 220 . In Sutherland v. Railroad Co., the telegraph operator, through whose negligence the accident happened, was a little over 17 years old, had had over a year’s experience, been in' the employ of the company 3 month's prior to the accident, and had discharged his duties intelligently and to the entire satisfaction of the company. It was held that the jury could not be permitted to infer that the operator was “incompetent from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.” In Molaske v. Coal Co. it was held negligence to employ a boy 12 years old in a responsible position, requiring constant watchfulness and attention. The court appears to have placed its holding upon the presump *633 tion of the common law, which fixes the age when the presumption of capacity arises at 14.

2. Did the company exercise due care in employing Ryan ? One Richard Pascoe, the master mechanic of the defendant, was the authorized agent to employ him. Ryan’s father had been a practical engineer, known to Mr. Pascoe for 18 years. Mr. Pascoe was informed by the father of the experience the son had had, and was advised that he was capable of doing the work. Mr. Pascoe was familiar with the method of braking at the Michigamme mine, whére young Ryan had had his experience, which was the same as in the defendant’s mine. It further appears that the duties of the hand brakeman at the defendant’s mine were more simple than at the mine at Michigamme. One McCall, an engineer, and witness for the plaintiff, testified that, “if a man had had a year’s experience, he ought to be a very good man,” and “I should consider two years’ experience would make any one all right.” One John St. Cyr, another witness for the plaintiff, testified on cross-examination: “I should think that if Mr. John Ryan recommended a man, that he would be all right.” These facts were undisputed. It therefore became a question of law for the court to determine whether the defendant had exercised due care in the employment of Ryan. The degree of care required is well stated in Wabash R. Co. v. McDaniels, 107 U. S. 454 : “It is such care as, in view of the consequences that may result from negligence on the part of employés, is fairly commensurate with the perils or dangers likely to be encountered.” In this case the machinery used was simple and easily managed. Defendant made due inquiries, of one competent to judge, as to Ryan’s experience and ability. The defendant therefore exercised due care in employing him.

3. There was no evidence that Ryan had become incompetent, or, if there were, that knowledge of his incompetency had been brought home to the defendant. When the master has exercised due care in the employment of a *634 servant, he may rely upon the presumption of competency until he has notice or knowledge to the contrary. 1 Bailey, Mast. & Serv. § 1413; Chapman v. Railway Co., 55 N. Y. 579 . The only evidence plaintiff offered from which he claimed the right to go to the jury upon the question of notice was the testimony of one O’Donnell, who was at the time the engineer of the hoisting machinery for the defendant. He testified that he thought Ryan sometimes lowered the cage too fast. He also testified that they disagreed in regard to the speed at which men ‘should be lowered; that he did hot know who knew the most about running the brake, Ryan or himself; that Ryan “had always attended to his business up to this ■ time” (the time of the accident). The officers of the mine were frequently in the engine room, frequently rode up and down in the cages, had seen Ryan perform the work, and had never seen or had their attention called to any act of incompetency or fault otherwise than, as above stated, that one person thought that he ran too fast. An employe may frequently use machinery in a negligent manner, but if such negligent use leaves no trace behind it, which it is the duty of the master upon inspection to see, no presumption of knowledge on the part of the master arises. A switchman may for a long time frequently leave a switch open, and habitually violate the rules of the master; but no inference of knowledge on the part of or notice to the master will arise from that fact. Cameron v. Railroad Co., 145 N. Y. 400 ; Lee v. Railroad Co., 87 Mich. 574 .

4. It is admitted that Ryan and plaintiff were fellow-servants, and that the defendant is not liable for the negligent act of a competent fellow-servant. It was therefore incumbent upon plaintiff to show that the accident happened in consequence • of such incompetency. Ryan had used this screw successfully and properly for more than seven months, and had performed a like service in another mine for nearly two years. For some reason he forgot, and turned the screw the wrong way. It is not *635 different from the case where a competent switchman forgets and leaves the switch open. In neither case is the accident due to incompetency, but to a single negligent act of a competent employe. Harvey v. Railroad Co., 88 N. Y. 481 ; 1 Bailey, Mast. & Serv. § 1474; McNally v. Colwell, 91 Mich. 527 ; Thompson v. Railway Co., 84 Mich. 281 .

5. Plaintiff sought to show talk among the men that Ryan lowered the cage too fast. This was ruled out. It had no tendency to prove general reputation for incompetency. Davis v. Railroad Co., 20 Mich. 105 ; 1 Bailey, Mast. & Serv. § 1501. Not only is there no evidence that the accident was due to too great speed, but there is affirmative evidence from plaintiff’s own witness O’Donnell that the cage was descending at its “natural speed.” This testimony could therefore have had no bearing upon the issue. Ryan was lowering the cage as he had done hundreds of times before, at the same or less speed. The speed, therefore, had nothing to do with the accident. Core v. Railroad Co., 38 W. Va. 456 ; 1 Bailey, Mast., & Serv. § 1481; Thompson v. Railway Co. and McNally v. Colwell, supra.

6. It follows from what has already been written that defendant was not guilty of negligence in failing to watch Ryan, and ascertain how he was doing his work. It exercised due care in employing him, and its engineer watched and instructed him when he commenced to work. The law imposed no further duty upon defendant until it had received notice of conduct which denoted incompetency.

The judgment must be affirmed.

The other Justices concurred.