Marcus v. . Loane , 133 N.C. 54 ( 1903 )

This is an action brought by the plaintiff administrator of Peter Marcus, deceased, for damages alleged to have been sustained by reason of the death of his intestate, caused by the negligence of the defendant. The plaintiff testified that he was the father of Peter Marcus; that the deceased was about 15 years of age at the time of his death; that the deceased first worked on the lumber yard of the defendant, and quit and went in the house at defendant's mill about nine or ten days before he was hurt. The testimony tended to show that the deceased was employed at the defendant's lumber mill to oil machinery, and that on his attempting to turn the throttle of the engine it exploded, whereby he was scalded by hot water from the pipes, which resulted in his death.

The theory of the plaintiff was that his intestate was employed to manage and operate the engine and was not properly educated in respect to the duty, was too young to be put at such work; that he was directed by the engineer to start the engine, and that the engine was in a defective condition.

The theory of the defendant was that the plaintiff's intestate was acting outside of the sphere of his employment, turned the throttle without the knowledge of the defendant and without any direction to do so, and failed to turn the relief valve below the throttle before turning the throttle, and that as a natural consequence of the act, the engine having been at a standstill for several hours, by reason whereof the steam in the pipes just next to and above the throttle had condensed into water, the pressure of the volume of water behind from the pipes thus set in motion became irresistible. The testimony in respect to the several (56) contentions was conflicting.

His Honor in charging the jury said that "It was the duty of the defendant, if he directed the plaintiff's intestate to manage the engine and turn on the steam or allowed him to do so in the course of his duties, and if the defendant knew that he was young and inexperienced, to instruct him as to its danger, and to use due care in directing his attention to the danger, if any, connected with the engine and valve. It would be negligence in the defendant if he employed a boy 15 years old, without experience, and put him to running an engine without giving him careful instructions how to use it; and if that was the proximate cause of the injury, you should answer the first issue `Yes.'" To this portion of the instruction no objection can be sustained. It was entirely correct. His Honor proceeded immediately to say to the jury: "Was it due care to put the boy in charge of the engine without warning him of the danger, if any? and if not, was that the proximate cause of the injury?" and then to say: "It was the duty of the defendant to exercise due care in the employment of the boy to do such work as that of managing dangerous machinery; that is, was the hiring of a 15-year-old boy to run a mill and manage machinery without warning him of danger, if any, a thing that a prudent business man under the same circumstances would do? Was it due care to put the boy in charge of the engine without warning? Would a reasonable and prudent man do it; and, if not, was that the proximate cause? — that's the question." To this charge the defendant excepted, alleging as ground for this exception that his Honor expressed the opinion, or assumed it as proved, that the boy was employed to manage the engine. His Honor used the expression, "Was it due care to put the boy in charge of the engine?" later, repeating this language, and saying further: (57) "Was the hiring of a 15-year-old boy to run a mill and manage the machinery," etc. The rule laid down by his Honor for measuring the defendant's duty, assuming that the jury should find that the deceased was employed to manage the machinery or to run the engine, was clearly correct. The complaint of the defendant is that he assumed the very fact in issue to have been shown; that he should have said to the jury that if they found from the testimony, etc.

We are of the opinion, upon a careful examination of the entire charge, that his Honor inadvertently fell into error in the language complained of. The form of expression adopted by him was calculated, we think, to create in the mind of the jury the impression that the only question for them to decide was whether the hiring of a boy of the age of the deceased and putting him in charge of dangerous machinery or running an engine was negligence. If that fact had been found by the jury, with the further fact that he was not properly instructed or properly warned of the danger, the instruction in respect to the law would have been entirely correct; but when the judge said to the jury "Was it due care to put the boy in charge of the engine without warning?" "Would a reasonable and prudent man do it; and, if not, was that the proximate cause? — that's the question" — he withdrew from the jury the duty of ascertaining from the testimony whether the defendant had done the very thing upon which the right of the plaintiff to recover depended, which we think was an expression of opinion in regard to a vital question in controversy.

He further instructed the jury that "If you find that the taps had been left off the screws that hold on the throttle-cap, this was a continuing negligence on the part of the defendant, and continued up to the time of the explosion, even though the boy might have ascertained it; and if you find that to be the fact, and that was the proximate cause of the injury, you will answer the second issue `No.'" This instruction is correct; but his Honor proceeded to say to the jury that "If the (58) machinery was out of order, as contended by the plaintiff, and that defect was known to the defendant, or might by reasonable diligence have been known, that defect constitutes a continuing negligence on the part of the defendant, because it was his duty to furnish the plaintiff's intestate with safe and sound machinery, and, if that was the case, it was not contributory negligence in the boy to fail to turn the relief valve, if he did, before turning on the steam, and you will answer the second issue `No.'" This is practically a repetition of the instruction immediately preceding, omitting, however, the very important inquiry whether such negligence "was the proximate cause of the injury." The negligence of the defendant must be the proximate cause of the plaintiff's injury to constitute an actionable wrong, and in this respect the last instruction was defective. The jury should not say that because the machinery was out or order the plaintiff was entitled to recover; they must go further and say that the machinery being out of order was the proximate cause of the injury before they can answer the issue in favor of the plaintiff. "The negligence of the defendant, no matter how great, would not of itself render it liable in damages, unless it had contributed to the death of the plaintiff's intestate." Edwards v. R. R., 129 N.C. 78.

For these errors the defendant is entitled to a

New trial.

Cited: Horne v. R. R., 153 N.C. 240; Ensley v. Lumber Co., 165 N.C. 692;Dunn v. Lumber Co., 172 N.C. 136; Holt v. Mfg. Co., 177 N.C. 175;Smith v. Ins. Co., 179 N.C. 493. (59)