Coughlin v. Blaul , 120 Md. 28 ( 1913 )

I fully concur in the conclusion of the Court that the evidence is legally sufficient to show negligence on the part of the defendant in putting the eleven year old plaintiff to work on the machine in question without instructing him as to the danger to which he was thus exposed; but I am unable to agree to the view expressed in the opinion with respect to the exemption of the defendant from liability for the injury sustained by the plaintiff in the course of the work upon which he was employed. In view of the principle applied in Pennsylvania Steel Co. v.Wilkinson, 107 Md. 574, and other cases I think it should have been left to the jury to determine upon the evidence whether the negligence of the other child-servant of the defendant was anindependent or merely a concurrent cause of the injury. In the case cited the defendant negligently allowed a rope used in construction work to hang down across a street, and the plaintiff's horse became frightened and ran away, not because the rope itself prevented a safe passage, but because an unidentified person pulled the rope and caused it to swing towards the horse as it approached. It was contended that this act of negligence was entirely independent of that committed by the defendant company and that it was consequently exempt from liability in the absence of proof that the rope was pulled towards the horse by a servant of the defendant acting within the scope of his employment. This contention was overruled. It was held that the defendant was "chargeable with the negligence of the person who moved the rope, whether he was in its employ or not," and that his act must be imputed to the defendant company "as it was at most an intervening cause, and not a sufficient and independent cause by which the defendant would be relieved from responsibility." The case was held to be within the rule stated by Addison in his work on Torts, 3rd Ed., page 5, and quoted with approval by JUDGE ALVEY in Baltimore City Passenger RailwayCompany v. Kemp, 61 Md. 81, "that whosoever does an illegal act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of others, provided that the intervening against were setin motion by the primary wrongdoer, or provided their acts causing the damage were the necessary or legal or natural consequence of the original wrongful act." The movement of the rope, under the circumstances was held to have been "plainly induced by the wrongful act of the defendant in permitting it to hang over the highway in the position described," and upon the principle stated the defendant was declared to be liable to the plaintiff for the injury "sustained in consequence of the negligent handling or movement of the rope." It was said that "the question of remote and proximate cause is often perplexing and embarrassing, and at times very difficult to determine," but "the true rule is that what is proximate cause of an injury is ordinarily a question for the jury."

In District of Columbia v. Dempsey, 13 Appeal Cases, 533, cited in the opinion in Penn. Steel Co. v. Wilkinson, and said to be identical with it in principle, a broken telephone wire was negligently left suspended from a tree over the street. Within a few minutes before the accident a stranger fastened the wire to a tree in such manner as to form a loop, and in this the plaintiff was caught and injured. The stranger's intervention was held to have been a further and concurrent cause of the injury and not an independent cause which would relieve the defendant.

This Court said in Maryland Steel Co. v. Marney, 88 Md. 495 and in Baltimore and Potomac R.R. Co. v. Reaney, 42 Md. 136, that "the law is a practical science, and Courts do not indulge in refinements and subtleties, as to causation, that would defeat the claims of natural justice. They rather adopt the practical rule, that the efficient and predominating cause, in producing a given event or effect, though there may be subordinate and dependent causes in operation, must be looked to in determining the rights and liabilities of the parties concerned." It was further said that "no wrongdoer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense, that there was a more immediate cause of the loss, if that cause was put into operation by his own wrongful act." To entitle him to exemption, he must show not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done."

In Chambers v. Woodbury Mfg. Co., 106 Md. 496, there were five young girls employed to "doff" bobbins in the defendant's factory, and they were required at certain intervals in their work to wait for short periods on a platform outside the building. The platform was protected by a railing composed of two horizontal pipes, with a space of seventeen inches between the lower one and the floor of the platform. There were no seats on the platform, and while one of the girls, eleven years old, was seated on the floor near the outer edge, in the way customarily adopted, another girl came across the platform to slap her in play, and in moving her body to avoid the slap the first-mentioned child passed through the space between the lower rail and the floor, and falling to the ground was seriously injured. The Court held that the evidence was legally sufficient to require the submission of the case to the jury.

It was held in Sheridan v. Brooklyn N.R. Co., 36 N.Y. 41, that the negligence of a third person in pushing a boy from the platform of a car did not exempt the railway company from liability for the resulting injury where it negligently required him to stay on the platform; and in Carterville v. Cook,129 Ill. 152, it was held that a boy who was negligently shoved by another boy from an unguarded side-walk, elevated about six feet above the ground, had a right of action against the municipal corporation by which the sidewalk was maintained.

In Morris v. Stanfield, 81 Ill. App. 264, it was declared that "If it was negligence to put a boy under thirteen years of age at work in a factory within a few inches of an unprotected buzz saw, any act of a fellow-servant, not wilfully intended to injure appellee, that brought him in contact with the saw, was a concurrent act of negligence."

In the present case the primary negligence consisted in subjecting this little boy, without warning or instruction, to the risk of injury from the inadvertent or careless switching on of the electric current while the machine was being cleaned; and the concurrent negligence was the act of another immature servant of the defendant in producing the very result to the hazard of which the plaintiff was wrongfully exposed. The evidence tends to show that both the causes which thus contributed to the accident were "set in motion" by the defendant. He was responsible for the presence of both children at the place of danger, and the proof is that both had the same general duties under their employment. The testimony of Earl Warner, the thirteen year old boy, was to the effect that he "most always cleaned the machine." They were in the dimly lighted room together when the plaintiff started to clean the meat grinder, and as he had some difficulty in detaching the coil of knives from the cylinder, Earl, not seeing in the imperfect light that the plaintiff's hand was far enough down in the hopper to be caught, undertook to loosen the coil by turning on the current. The evidence is that it was necessary to take the machine apart in order to clean it, and while Earl states that he had been told not to take it apart for that purpose, yet, as he had been cleaning it "most always" as part of his duties, and as his younger associate was actually put to work at a process which could only be accomplished by removing the knives, it was a question for the jury as to whether the older boy was acting in the natural course of his duty when he made his unfortunate attempt to give assistance in the work. If he had been of sufficient age and discretion, he would not have turned on the current without exercising more care to avoid injury to his companion. If the room had not been poorly lighted, the plaintiff's peril could have been more readily observed. If the plaintiff had been told that the button on the machine was the only check at that time upon the current, he might have been on his guard against the danger when the other boy approached the machine to assist. If the switch on the wall had been turned off, as it should have been, while the plaintiff was cleaning the grinder, the accident would probably not have occurred. The causes and conditions which produced the plaintiff's injury were thus clearly co-operative and interdependent, and each was attributable, upon the evidence, to the defendant's negligence. In my view of the case it is particularly appropriate for the application of the principle of the decisions above cited, and should not have been withdrawn from the jury. If the declaration does not correctly describe the negligence which the proof discloses, I think the plaintiff should be given an opportunity to amend and should not be denied recovery by a conclusive judgment on this appeal.