REPORTS OF CASES

DETERMINED IN THE

COURT OF APPEAL

AND IN THE

HIGH COURT OF JUSTICE FOR ONTARIO.

[DIVISIONAL COURT.]

LAWSON V. PACKARD ELECTRIC CO., LIMITED.

Negligence-Infant-Dangerous Machine-Duty to Warn-Superintendence— Workman's Compensation for Injuries Act—R.S.O. 1897, ch. 160, sec. 3, sub-sec. 2.

The plaintiff, a boy under fifteen, was engaged by the foreman of the defendants' factory to help any one who needed help on a certain floor, except one man who was doing piecework. He had been helping a man who was operating a stamping machine, to put plates through the machine, and the former leaving for a few minutes, he took hold of the press and endeavoured to get a plate out, and, apparently through his inadvertently touching the foot press, the die came down upon his hand, and he lost three fingers. It was admitted that the machine was a dangerous machine:

Held (CLUTE, J., dissenting), that the defendants were liable under sec. 3, sub-sec. 2, of the Workmen's Compensation for Injuries Act, R.S.O. 1897, ch. 160, inasmuch as the foreman, whilst exercising superintendence, was negligent in not pointing out to the plaintiff which of the machines were dangerous, and cautioning and instructing him as to them, and, if it was intended that he should not attempt to operate any of them expressly forbidding him to do so.

THIS was an appeal by the defendants from the following judgment of MABEE, J., delivered after the trial of this action at the non-jury sittings at St. Catharines, on September 30th, 1907.

H. H. Collier, K.C., for the plaintiff.

E. D. Armour, K.C., and G. B. Burson, for the defendant.

October 1. MABEE, J.:-The plaintiff entered the defendants' employ in May last, and on June 19th met with an accident while attempting to take a tin plate out of a stamping machine. lost the ends of three fingers. He was between fourteen and

He

D.C.

1907

Oct. 1.

Dec. 30.

fifteen years of age, had no knowledge of machinery of any kind,

1-VOL. XVI. O.L.R.

D. C. 1907

LAWSON

v.

PACKARD
ELECTRIC
Co., LTD.

Mabee, J.

and was engaged by Mr. Pope, the defendants' foreman upon the floor in question, to help anyone there who needed help, except one Gallagher, who was doing piecework. He was given no instructions how to operate any of the machines—the foreman said it was not intended that he was to operate any-nor was he given any warning as to any of them being dangerous. In other words, he was just turned loose upon this floor, with general instructions to help anyone and everyone (except Gallagher), with no word of caution or warning of any description. On June 19th he was helping George Hill to put the plates through the stamping machine in question; they were carried to the machine by the plaintiff and Hill; the latter was to operate the press, then, after they were stamped, the plaintiff was to carry them away. Hill had left the machine for a few moments, and Pope called out and asked, in effect, if the two were going to be all day in getting the plates through, whereupon the plaintiff, in the absence of Hill, took hold of the press, and endeavoured to get a plate out, when the die came down upon his hand. It is tripped by a foot press, and this the plaintiff must have inadvertently touched, as it appears it had never been known to fall without pressure upon that part. Hill had been accustomed to use a stick to take the plates out, but this had been misplaced. The accident plainly occurred by reason of the plaintiff's endeavour to get the plates put through without delay, and his attempting to remove one from a machine about which he had never been instructed nor warned as to its danger. Pope had authority to employ the plaintiff, and was acting under such authority. Was he negligent in not cautioning the plaintiff as to the danger of the machines? It is admitted the machine in question is dangerous, and the foreman said there was no way to guard it. Was it not the duty of the foreman to point out to the plaintiff the dangerous machines, and caution him, or give some instructions as to how he should approach them, and if it was intended he should not attempt to operate any of them, forbid him from so doing?

I have no hesitation in holding his omission to take this reasonable and sensible course to be the grossest kind of negligence. The dangers surrounding the work the boy was put at were apparent to the foreman. They were by no means appreciated by this inexperienced boy, and I am of opinion that the plain duty of

The

any foreman, under the like circumstances, is to point out, to caution, and to warn, and omission to do so is negligence. evidence does not disclose that the foreman made any examination of the boy's capacity for appreciating danger, and so he was allowed to commence without any care being taken to ascertain his ability to perform the work he was being set at. It is clear that the instructions given him to help those requiring his assistance would, sooner or later, take him to assist someone in working a dangerous machine, just as, in the result, he was called upon to help Hill. He is, then, directed to perform what may be hazardous work, and of which he has had no experience, and, as I understand the liability and duty of masters under such circumstances, it is that they are bound to point out the dangers connected with that work, thus enabling the infant employee to comprehend and avoid them, and omission so to do is carelessness that makes the employer liable for the consequences that follow.

I was prepared to deal with the case and make the foregoing findings at the trial, but Mr. Armour contended that the defendants were not liable even if the foreman had been guilty of negligence in omitting to caution, and relied upon the recent case of Cribb v. Kynock, Limited, [1907] 2 K. B. 548, where it was held that the doctrine of common employment applied, and that, although there was a duty on an employer to give instructions to a young and inexperienced person employed by him in dangerous work, that duty was one that could be delegated to a foreman, and that the negligence of the foreman was a risk which a fellow servant, even though an infant, takes upon himself. The report of this case states that the action was based solely upon the common law liability, and so, I presume, there was some reason why the plaintiff was not able to invoke the assistance of the Employers' Liability Act.

The plaintiff here is entitled to rely upon the provisions of R.S.O. 1897, ch. 160, sec. 3, sub-sec. 2, which provides for personal injuries caused by the negligence of any person in the service of the employer "who has any superintendence" entrusted to him, whilst exercising such superintendence, and in such cases the statute has swept away the defence of common employment. So here the foreman, Pope, was in the service of the defendants, and was

D. C.

1907

LAWSON

v.

PACKARD
ELECTRIC
Co., LTD.

Mabee, J.

D. C. 1907

LAWSON

บ. PACKARD ELECTRIC Co., LTD.

Mabee, J.

entrusted with the superintendence of hiring men to work on this floor, and while he was so exercising such superintendence he was guilty of an omission of duty towards the plaintiff which I think was plainly negligence. I do not read the Cribb case as in any way cutting down or limiting the provisions of the Employers' Liability Act, and, therefore, I do not regard it as assisting in the solution of any case here based upon the provisions of our Workman's Compensation for Injuries Act, R. S. O. 1897, ch. 160.

I think the plaintiff's case can also be based upon sub-sec. 3 of sec. 3 of the Act, and, if desired, the pleadings may be so amended. The plaintiff was bound to conform to the directions of Pope, and at the time of his injury he was so conforming—namely, helping Hill-and injury resulted from his having so conformed. I think it was negligence in the foreman in so directing the plaintiff to assist at the working of a dangerous machine, without himself giving some instructions, or warning, or seeing that the operator of the machine did.

I do not think the plaintiff has any redress under the provisions of the Factories Act, R.S.O. 1897, ch. 256, as it does not appear that the machine in itself could have been rendered less dangerous by any sort of guard or protection.

I think the plaintiff is entitled to recover, and I assess the damages at $600.

Judgment for plaintiff for $600 damages and costs.

The appeal was argued before MULOCK, C.J.Ex.D., and BRITTON and CLUTE, JJ., on November 26th, 1907.

E. D. Armour, K.C., and G. B. Burson, for the defendants, contended that the boy was not hired for the purpose of working the machine which caused the accident, and brought the trouble on himself; at common law it was clear he could not recover: Cribb v. Kynoch Limited, [1907] 2 K.B. 548, following Wilson v. Merry (1868), L.R. 1 H.L. (Sc.) 332, and followed in Young v. Hoffman Manufacturing Co., [1907] 2 K.B. 646; that the defence of common employment was only swept away by the Employers' Liability Act, where there is a person entrusted with superintendence, and the accident occurs while he is engaged in such superintendence: R.S.O. 1897, ch. 160, sec. 3 (2); Shaffers v. General Steam Navigation

Co. (1883), 10 Q.B.D. 356; Griffiths v. Earl of Dudley (1882), 9 Q.B.D. 357, at p. 362; Roberts and Wallace on Employers' Liability Act, 3rd ed., at pp. 22, 252; that there was no duty in the defendants to instruct the plaintiff not to use a machine which he was not hired to use: Labatt on Master and Servant, vol. 2, p. 1851; Young v. Hoffman Manufacturing Co., supra, at pp. 656, 659; Degg v. Midland R.W. Co. (1857), 26 L.J. Exch. 171; Potter v. Faulkner (1861), 31 L.J.Q.B. 30; that the plaintiff could not enlarge the liability of his employer by doing something which he was not hired to do; that if the plaintiff had used the stick to take the tins out, the accident would not have happened, and he must have seen the other boy use the stick in this way; that to take a case out of the common law rule the accident must occur while the superintendent is superintending, for the Act says "while in the exercise of such superintendence." They also cited Davey v. London and South-Western R.W. Co. (1883), 12 Q.B.D. 70; Thomas v. Quartermaine (1887), 18 Q.B.D. 685; Osborne v. Jackson (1883), 11 Q.B.D. 619.

H. H. Collier, K.C., for the plaintiff, contended that the accident arose from the negligence of the defendants, and consisted in the failure of their foreman to warn the plaintiff, and that this negligence occurred at the time of the hiring, when the foreman was exercising his superintendence: Cribb v. Kynoch, [1907] 2 K.B. 548; Labatt on Master and Servant, vol. 1, pp. 558-61, 567-9; that the plaintiff was hired to help everybody on that floor except one man, who was doing piecework: Armstrong v. Forg (1895), 162 Mass. 544; that there was also negligence in that Pope saw that the stick was not there, and did not warn the plaintiff that the machine was not to be worked without it; that if the plaintiff was a volunteer and outside the scope of his duty, the machine was a dangerous machine and not properly guarded, inasmuch as the stick was not there, and thus there was liability under the Factories Act.

Armour, in reply, contended that the machine here was one which could not be guarded without its working being stopped: Roberts and Wallace, ibid. p. 242.

December 30. MULOCK, C. J.:-- This action is brought by the plaintiff for damages because of injuries sustained by him