Kehler v. Schwenk

Citations

• 144 Pa. 348
• 22 A. 910
• 1891 Pa. LEXIS 620

Syllabus

<p>1. The test of liability of an employer to an employee, for injury received in the course of the employment, is not danger, but negligence. As to machinery and appliances, the employer is bound to furnish such only as are of the character ordinarily used and of reasonable safety, and the former is the conclusive test of the latter.</p> <p>2. Where, in an action for negligence by an employee, for injuries received in unhitching a dump-car, the evidence shows clearly that there were several methods of hitching in common use, the choice between them being a matter of judgment depending on surrounding conditions, the owner had the absolute right to select according to his own judgment.</p> <p>3. In such an action, an instruction to the jury, “You would not be willing to lose your arm for the world, or for the wealth of a Vanderbilt,” though followed by the caution that it “ would be no test of value,” is an undesirable form of presenting the question of damages to the jury, prone enough without it to measure verdicts by sympathy.</p> <p>4. The measure of a boy’s responsibility for contributory negligence is his capacity to see and appreciate danger; and the rule is that, in the absence of clear evidence of the lack of it, he will be held to such measure of discretion as is usual in those of his age and experience, the measure varying of course with each additional year.</p> <p>5. The increase of responsibility makes no sudden leap at the age of fourteen. That is simply the convenient point at which the law, founded on experience, changes the presumption of capacity, and puts upon the infant the burden of showing his personal want of the intelligence, prudence, foresight, or strength usual in those of that age.</p> <p>6. In the present ease, the plaintiff being between fourteen and fifteen, and the evidence as to whether or not the employment, with the appliances used, was manifestly dangerous and unsuitable for boys of the plaintiff’s age being contradictory, it was