East Brooklyn Box Co. v. Nudling

Pearce, J., delivered the opinion of the Court. There is but a single narrow point for determination in this appeal arising upon a demurrer to the declaration, and it is not without interest, though it may be briefly disposed of. While affirming the ruling appealed from, it is due to the ap ³⁹¹ pellant’s counsel to say that their views of the law were presented with much force. This suit was brought by the appellee to recover damages for injuries alleged to be due to negligence of the appellant in prematurely starting a steam split saw, tvhile the appellee, one of its employees, was engaged in filing the saw.

The trial resulted in a verdict for plaintiff under instructions to which no exceptions were taken by either party. The declaration alleges that plaintiff’s injuries were received “through the premature running and operation of the saw ; that the premature running and operation of said saw, was due to the defective and unskilful manner in which the same, and the connecting pulleys, belt, and shafting had been erected and suffered to remain, of which the plaintiff then had no knowledge or information, and which, the plaintiff, from lack of knowledge of machinery, could not, by the exercise of due care, have ascertained ; and that the accident was not due to any fault or want of care on the part of the plaintiff, who used due care and caution.” The demurrer is based upon the insertion in the declaration of the words we have italicized, and the contention is that the effect of these words is to charge the plaintiff with contributory negligence in undertaking a service which resulted in injury to him by reason of his self-confessed “lack of knowledge of the machinery ” which he undertook to put in order. It is true that one entering an employment, impliedly represents “ that he is competent to perform the duties of the position which he seeks, and competent to apprehend and avoid all dangers that may be discovered by ordinary care and prudence,” provided he is “apparently, of sufficient age, physical ability, and mental caliber to perform the service.” Bailey's Masters Liability for Injuries to Servants, 133. And where there is an opportunity for proof, it may be presumed— in the absence of proof to the contrary — that the plaintiff comes within these requirements.

But there is nothing in the declaration to show the plaintiff’s age, intelligence, or physical capacity; when he was employed, or for what service, or what ³⁹² opportunity he had to acquire any knowledge of the condition of the machinery which operated the saw. He may have been an intelligent adult,