Friedrich v. Geisler

COBBS, J. This suit was instituted by August Geisler, the father, as next friend, to recover damages against appellant on the ground of negligence on the part of appellant in allowing Fritz Geisler, a minor over 15 years old, without warning him of the dangers, while in his service and discharge of his duty, to plane off or reduce the size of a piece of lumber about the length of one foot, and while in the act of doing so the said piece of lumber and material was pushed and pressed from under plaintiff’s hand, causing his said hand to fall upon and come in contact with the planing knives, with the result that three of plaintiff’s fingers were cut off, bruised, contused, and lacerated to such an extent as to require their amputation. It was further alleged as the result of the injury that his capacity to labor and earn money has been greatly and permanently impaired, and has suffered, and will in the future continue to suffer great physical pain and mental anguish, claiming damages to the extent of $5,000. The defense alleged and asserted was that plaintiff was experienced as a helper in and about the use of the machine that caused the injury; had been fully cautioned and warned and knew its character and danger from careless use; was not at the time engaged on any work for plaintiff or connected with plaintiff’s business in putting the machine in motion; was attempting to make something for himself without knowledge of appellant or his foreman. These issues were submitted to a jury, and the damages were assessed at $250. There was testimony introduced fully supporting the contention of both parties and is sharply contradictory of each other. All went to the jury and the finding of the jury upon the issues is binding upon this court, unless some error of law has been committed by the court on the trial of said cause or in the charges given or refused. The proof showed the boy was an unusually bright boy, over 15 years old, and who had been attending school prior to his employment. He had, when injured, been working for about three months. Mr. Friedrich, the owner, had seen him at work and using the machine. He instructed the boy to make the necessary repairs to an old ice box. The boy said it was necessary in his judgment to use the machine in the manner in which he used it, as Mr. Friedrich had told him to do everything necessary to be done to it, and, having, left it to his judgment, the boy supposed that was necessary. This work was being done in plain view of the others working in the shop, including Mr. Derr, the foreman under whom he was working. He did not know of any of the dangers, or that it was dangerous to use a longer piece of wood, nor did he know until after his injury that there were pieces of wood used to push short planks with. While pushing the plank, which was necessary, the same slipped, and his hand was caught with the knives used in the machine and thus injured. He had no warning at any time of the dangers. The defendant contradicted this testimony, showed that the boy was warned, and warned at the very time, just before he was injured, of the danger; that what he was working at was and could not be for any repair of an ice box, but was something the boy was making for himself. [1] Appellant’s first assignment of error is, in effect, that the court erred, in the first paragraph of its charge, in giving an abstract definition of “negligence,” and not succinctly instructing the jury as to what constitutes negligence applied to the facts of the case. The portion of the court’s charge [1081] objected to is as follows: “By ‘negligénce’ as used in this charge is meant the failure to use ordinary care; and by ‘ordinary care’ is meant such care as a person of ordinary prudence would use under the same or similar circumstances.” We think that this charge must be construed in connection with the main charge, and has been cured thereby. Defendant might have required the court by special charge, if that paragraph stood alone, to define negligence as applied to the particular case, but that does not seem to have been done, and this assignment is overruled. Appellant’s second assignment of error calls into question the second paragraph of the court’s charge, which is as follows: “If you believe from the evidence that on or about September 23, 1909, the plaintiff was in the performance of his duties for the defendant, and while in the discharge of such duties was in the act of planing a short piece of lumber, and while in the act of so doing the said piece of lumber was pushed and passed from under plaintiff’s hand, causing his hand to fall upon and come in contact with the planing knives, and plaintiff’s three fingers were cut and torn, and because thereof they are now in the condition that you find them to be; and if you further believe from the evidence that plaintiff was inexperienced and unacquainted with the use of the machine he was using; and if you further believe that said machine was of a highly dangerous character; and if you further believe from the evidence that the defendant failed to instruct plaintiff as to the safe manner of operating the said machine, and how to guard against the dangers, if any, and that it was negligence on the part of defendant to fail to instruct plaintiff as to the safe manner of operating said machine and how to guard the dangers, if any, incident to the operation thereof, if you so find, and that such negligence, if any, was the proximate cause of plaintiff’s injuries; and you. find that plaintiff possessed such a degree of intelligence as to know and appreciate the danger, if any, of his act, and was not guilty himself of contributory negligence—then you are instructed to return a verdict for the plaintiff.” [2] The first objection thereto is that the court fails to explain to the jury what were the duties of plaintiff under the pleading and the entire evidence. We do not think it necessary for the court in its general charge to go any further than it did in submitting to the jury whether or not the plaintiff was in the performance of his duties for the defendant. What those duties were, were facts before the jury, and it would not have been proper for the court to comment upon the facts, and it was not necessary to go any further to show, as contended by appellant, that at the time of his injury he was required to do what he was doing by the defendant or his foreman, and that such must be established by a preponderance of the evidence. We do not think the charge subject to the criticism, and we think the court went as far as was necessary. [3] The second ground is that the «charge of the court failed to submit to the jury whether or not plaintiff saw the knives plainly and knew the danger of placing his hand against them;, then no warning from defendant or any one else was necessary, and he assumed the risk of his own negligence. The charge fully covered this phase of the case. The charge submitted to the jury whether or not plaintiff was in the discharge of his duties, and if in so doing his hand was cut by the planing knives, and whether or not he was inexperienced and unacquainted with the use of the machine, and whether or not it was of a dangerous character, and whether or not the defendant failed to instruct plaintiff as to the dangerous character and how to guard against the dangers, and that it was negligence on the part of the defendant to have failed to instruct plaintiff as to the safe manner of operating the machine. It was fully submitted to the jury whether or not he was in the discharge of his duties and in the absence of any more definite instruction, which the defendant had a right to call for, we can see no error in this charge, and the assignment is therefore overruled. [4] The third assignment of error complains, in effect, of the fourth paragraph of the charge of the court, that it shifted the burden of proof on the defendant to prove a negative and is contrary to the law, which clearly places the burden on plaintiff to show he was in the performance of some duty, and the first proposition thereunder is to the effect that the burden of proof was upon the plaintiff to establish his case by a preponderance of the evidence, and was reversible error for the court to shift the burden of proof, to require defendant to affirmatively establish the negative of plaintiff’s contention. The portion of the paragraph of the charge complained of is set out under appellant’s statement as follows: “If you believe from the evidence that at the time plaintiff was injured he was not in the performance of some duty for defendant, * * * then in either of these events you are instructed to return a verdict for defendant.” We do not understand the charge as appellant seems to. The burden of proof has not been shifted to the defendant; but the charge is to the effect that plaintiff cannot recover if he was not in the performance of his duty. In other words, the plaintiff’s right to recover was based upon his establishing the fact that he was performing some duty for defendant, and he cannot be heard to complain, if it be a burden placed upon the plaintiff. [1082] [5] The fourth assignment of error calls into question the charge of the court, as follows : “The burden of proof is upon the plaintiff to establish his case by a preponderance of the evidence.” We can see no reason to agree with the appellant that such a charge is error “because the jury are nowhere told succinctly and clearly what his case is that he must establish by a preponderance of the evidence.” The balance ‘of the assignment it is not necessary to set out. It is sufficient only to say that it was for the court to determine whether there was evidence enough to go to the jury. [6] It is for the jury to determine whether the evidence preponderates. If in any case there is not sufficient evidence to go to the jury, the court should instruct a verdict, and the court was here following the universal rule of instructing the jury as to how the plaintiff should establish his case by evidence. The only error assigned on account of the refusal of the court to give a special charge is referred to in the fifth assignment of error, as follows: “The court erred in refusing to give to the jury charge No. 1 asked by the defendant.” The charge referred to is a request for a peremptory instruction for the jury to return a verdict for the defendant. The refusal of this charge was not error. [7] Viewing this case in the light of the facts and the assignments of error calling in question portions of the court’s charge in the abstract, we cannot see any error assigned that requires a reversal of the case. The evidence sufficiently supports the finding of the jury that the boy, although a minor, was of unusual intelligence; that he was directed by his master to do work according to his own judgment and discretion, which, in the opinion of the boy, was required to be.done by the piece of machinery which was very dangerous to an inexperienced hand; that he was an inexperienced hand and had not been warned of the danger of doing the character of work that he was engaged in, and while so engaged in this work. was injured. As to his degree of intelligence, as to whether he was guilty of contributory negligence in doing this work, and as to whether the machine was of itself dangerous, and everything connected with its use, were fully submitted to the jury, and their finding we are not at liberty to disregard. We have fully examined all the assignments of error and the propositions submitted thereunder, and they are overruled. The judgment of the court is affirmed.