McCool v. Lucas Coal Co.

Supreme Court of Pennsylvania
McCool v. Lucas Coal Co., 150 Pa. 638 (Pa. 1892)
24 A. 350; 1892 Pa. LEXIS 1387
Heydbick, Heydrick, McCollum, Paxson, Sterrett, Williams

McCool v. Lucas Coal Co.

Opinion of the Court

Opinion by

Mb. Justice Heydbick,

If the unfortunate boy, for-the loss of whose services the *642father seeks compensation in this suit, had escaped death, and were here asking indemnity for injuries received while in the service of the defendant, it might be a question whether the employer did not owe him the duty of exercising such watchfulness and oversight, or at least giving such instruction and admonition as would, with proper obedience on his part, have insured him against serious harm. But it is not his cause that is to be passed upon; it is that of an adult father, who, if he did not actually place his son in a dangerous service, at least suffered, him to engage and continue in such service. Such sufferance is said to have the sense of permission; and, where the danger is great, and the child is of tender years, it is said to be negligence per se : R. R. Co. v. Long, 75 Pa. 257 ; Smith v. Passenger Ry. Co., 92 Pa. 450. The father owes to his infant child the duty of protection, and this includes restraint from exposure to dangers, with which one of its years and discretion is unfitted to cope. When this duty is neglected the father is said to be in pari delieto with a negligent defendant, and though the infant may recover against a wrongdoer for an injury caused partly by his own imprudence, the father cannot: Smith v. O’Conner, 48 Pa. 223; Glassey v. R. R. Co., 57 Pa. 172. He assumes all the risks naturally and reasonably incident to the employment in which he permits his son to engage, not the least of which is, that the indiscretion and rashness of youth will lead him to needlessly expose his person to danger. He has the right, however, to assume not only that his son will be provided with suitable implements and means to carry on the business which he is set to do, but that the place in which his service is to be performed will be reasonably suitable and free from dangers, not ordinarily attendant upon the business. Tested by this rule, it will be found that the defendant was not shown to have been blameworthy. No attempt was made to show that the defendant’s coal breaker was inferi- or in its structure to those in ordinary use, or that it was beset with dangers not common to and inseparable from all similar establishments. The one complaint made is, that the slate-picker boss was not provided with a speaking tube or bell wire with which to signal the engineer when it became necessary to stop the engine, and to that alleged defect the fatal accident was sought to be attributed. A few minutes before the acci*643dent the rolls of the breaker became clogged, and the slate-picker boss, to use his own language, “told some of them (meaning the slate-pickers] to go out and stop the engine.” It is claimed that the plaintiff’s son responded by going to the hoisting shaft, thrusting his head through an open door, the sill of which was two and a half feet above the floor upon which he stood, and shouting the order to the engineer somewhere below, because his lifeless body was found ten minutes later hanging over the sill of the door, and bearing evidence that he had been struck by a descending car. The same witnesses, however, who detailed the facts from which it is inferred that the boy went to the shaft to give the order to the engineer, and in so doing received the fatal blow, testify that there was another and perfectly safe way by which he could have reached the engine room. This fact, in the absence of evidence that the defendant ordered the boy to go to the shaft to give the direction to the engineer, is fatal to the plaintiff’s case. The slate-picker boss was not a vice-principal, who, by giving such an order, could fix liability upon the defendant; being engaged in the same common work, and performing duties and services for the same general purpose, he was a fellow servant with the boy, though the latter was subject to his direction: Coal Co. v. Jones, 86 Pa. 482; D. & H. Canal Co. v. Carroll, 89 Pa. 374. But it did not appear that even he had directed the boy to go to the shaft.

The judgment is reversed.

Reference

Full Case Name
McCool v. Lucas Coal Co., Ltd.
Cited By
5 cases
Status
Published
Syllabus
Sisk of employment—Infant—Parent—Negligence. Where a parent permits a child of tender years to engage in a dangerous occupation, such parent is guilty of negligence per se. The parent owes to the child the duty of protection, and this includes restraint from exposure to dangers with which one of its years and discretion is unfitted to cope. Where this duty is neglected the parent is said to be in pari delicto with a negligent defendant, and, though the infant may recover against a wrongdoer for an injury caused partly by his own imprudence, the parent cannot. The parent assumes all the risks naturally and reasonably incident to the employment in which the child is permitted to engage, which includes the indiscretion and rashness of youth that may lead him to needlessly expose his person to danger. Dangers incident to business—Goal breaker. A parent has a right to assume not only that his child will be provided with suitable implements and means to carry on the business which he is set to do, but also that the place in which his service is to be performed will be reasonably suitable and free from dangers not ordinarily attendant upon the business. The absence of a bell or speaking tube in a coal breaker by means of which a slate-picker boss may signal the engineer when it becomes necessary to stop the engine, and the use of a door opening into a constantly operated elevator shaft, to call to the engineer, will not render the coal company liable to a parent for' the death of an infant of tender years by being struck by the machinery in the shaft, when he went to call the engineer, where there was another perfectly safe way to reach the engine room and no order was given as to the way to go. While the employer might owe the child the duty of exercising such watchfulness and oversight, or at least giving such instruction and admonition, as would, with proper obedience on his part, insure him against harm; and while the neglect of such duty might render the employer liable to the child, it will not to the negligent parent. Fellow servant—Slate-picker and slate-picker boss. It seems that a slate-picker boss is not a vice-principal, who, by giving orders to the coal pickers to 'notify the engineer to stop the engines, could fix liability upon the defendant; being engaged in the same common work and performing duties and services for the same general purpose, he is a fellow servant with the slate picker, though the latter is subject to his direction.