Kaufhold v. Arnold

Opinion by Mb. Justice Gbeen, When the plaintiff received his injury his employment was simply that of cleaning some wooden boxes of sediment which had gathered in them, and emptying the contents on a cinder pile. He carried the sediment in buckets to an elevator on the same floor,'and thence descended by the elevator to the cellar, where he emptied the buckets on the cinder pile. He was not engaged in the working or handling of any machinery, and he therefore did not require any instructions for that class of work. He was originally engaged as a sweeper, afterwards at cutting corks in' the blocking room, and incidentally at cleaning the .steam boxes of sediment. It was in this last work that the plaintiff was injured. He testified that he received instructions as to the work and how to use the elevator for the purpose •of canying the sediment of the steam boxes to the cellar. He described the manner of his injury by saying that he went to the elevator and rattled the rod and pulled the elevator up but some one below pulled it back again. This was done a second time. Then he said: “ The next time I rattled they answered and I got on the doors and wanted to’ see who was using it. Just as I was on the doors the elevator started to come up: I was just stooping to open the door when the elevator raised up. I had one foot on each door. Then I grabbed a-hold of the rope and slid down on the elevator on to this iron arch that opens the doors. My left hand slid right down that way and went into the little pulleys that keep it straight; and I hollered and Mr. Compton came over and stopped the elevator and left it run down and my hand came out and I got off at the blocking room floor. . . . The rope was right at my hands as the elevator — 278 — came up and I grabbed just a-bold of the rope till my feet got off the elevator doors. I left myself slide down on to the elevator on that iron arch though I got on that cross beam with my feet. My hand slid down the iron arch and was crushed.” It will be seen that the injury was the result of the manner in which he attempted to use the elevator. The open space in the floor through which the elevator ascended was closed by two movable doors on a level with the floor, and these doors were raised by the elevator as it ascended, and were closed as it descended. He had cleaned the steam boxes about a month before and testified that he then descended and ascended the elevator about fifty or sixty times. On the day of the injury he had done the same thing about twenty-five times before the accident occurred. On cross-examination he was asked: “ Q. Did you understand the operations of the elevator, how it should be worked? A. Yes, sir. Q. Had you ever been on any other ele.vator ? A. No, sir. Q. This elevator was in constant use, was it, everyday? A. Yes, sir. Q. People going up and down all the time ? A. The elevator boys bringing cork wood up every day.” Having seen so much of the working of the elevator, and having used it so much himself, and understanding, as he said he did, the operations of the elevator, it is' difficult to understand how it can be said that he was insufficiently informed as to its use. And in reality that contention is not made, for in another part of his testimony he said he was fully instructed as to the use of the elevator. He was asked: “ Q. Please state everything he (Mr. Rote) said to you about how you were to use the elevator, and what he said to you about it, or any danger connected with' it, or anything else ? A. He told me that whenever I wanted to use the elevator, and it was not on that floor, I should rattle the rod. If nobody is using it they won’t answer. If they did not answer I should just pull it up. If they answered I should wait till they were through, and they would let me know by knocking on the rod when they were through. That day they were using it down below and did not answer and I pulled it up.” It is perfectly plain that if he had not stood astride the doors, with one foot on each, the accident could not have happened. Knowing well that the elevator was likely to come up at any moment his position on both doors was an act of negligence — 279 — which, if he had been an adult, would have debarred him from any recovery. Being less than.fourteen years of age he is not. chargeable with contributory negligence. But even with children of tender years there can be no recovery except upon proof of negligence on the part of the defendant. In this case there was no proof of negligence in any of the structures, appliances or devices which were used by the plaintiff. There was also no proof that he was required to work with hazardous machinery as to which he was not instructed. In point of fact he did no work with aüy such machinery. The only manner in which it was sought to make out a charge of negligence was by an allegation that Rote, the foreman, had told him that in a certain contingency he should get on the door and open it, and that it was while he was doing this that he was injured. This is the way in which he states-it. He was asked by his counsel: “ Q. What about opening the door ? A. If they would answer, he told me to get on the door to find out who was using it, and what they were doing with it so long. Q. What did he say to you about opening the door ? A. We should open it if nobody answered on the rod; if we pulled it up and they pulled it down again, we should get on the door and find out what they were using it for. Q. What about opening the door? A. Get on it or reach around the other way; if we could not w.e would have to get on and open it.” On this subject there was no other testimony than that of the plaintiff. He was entirely uncorroborated and unsupported by the testimony of any other witness. But this was not all; he was positively contradicted by the testimony of Rote, who testified not only that he never gave him any such directions, but that on the contrary he gave him most positive instructions to keep away from the elevator doors at all times. He said he instructed him as follows: “ Keep on the floor, off the elevator doors, and stay away from the elevator entirely, unless he was ordered to go there by me. ... Q. You instructed him to go to the elevator ? A. Go to the elevator and wait on the wood boys till they came up. 'When they came up and was ready to go down he was to go down with them on the elevator and empty his bucket and come up with them again when — 280 — they came up. . . . Q. What instructions if any in regard to being careful on the elevator? A. Keep away from the doors at all times. When you get on the elevator, get on the platform properly; get in on the platform far enough that the floor cannot catch you. That is all the danger there is around an elevator that I know of.” In addition to the foregoing the plaintiff was contradicted by Lemuel-Peters, who, after saying that he had heard Rote tell the plaintiff he should not get on the doors, being asked to repeat the words, said : “ He said, don’t get on those doors. You don’t need to sweep on there at all. Dangerous if you get on there.” Another witness, Edward Ditzler, testified that he told the plaintiff once he should not get on the elevator doors, and it was before the accident. Benjamin Eckman, after saying that he had warned the plaintiff not to go on the doors, was asked : “ Q. Tell us what you told him when you say you warned him. A. I says, I just called him aside and told him he should not dare to go on the door, and says, if the elevator came up he might get hurt. Q. What answer did he make? A. He told me he would not.” All of this testimony was in contradiction of the testimony of the plaintiff,' and if it was believed the boy had no case and the jury should have been instructed in that event to return a verdict for the defendant. The boy was, of course, deeply interested in the event of the case, and all of these opposing witnesses were entirely disinterested, and the real issue before the jury was the truthfulness of the boy’s testimony. This much has been rendered necessary in order that we may consider intelligently the answers to the defendant’s points. The second point of the defendant was in these words : “A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the employer is not responsible for those injuries to which the employee voluntarily subjects himself.” To this the learned court below made a long answer admitting that it was true as to adults but not as to persons of tender years, and then was added a long comment to the effect that a child is hot to be judged by the same rule as an adult, that he — 281 — would not even be bound by the terms of any contract made between him and his employer, and that unless the jury found from the whole evidence that he was properly instructed as to danger, “ and that by reason of his age, knowledge, intelligence and physical strength, he had sufficient capacity, ability and understanding, to fully appreciate and be fully sensible of any danger attaching to his employment and the power to avoid it, there can be no negligence imputed to him contributory of ■otherwise so as to prevent a recovery for injury if the defendants were negligent.” The whole of this answer was inappropriate to the point and was uncalled for by anything contained in it. No question of contributory negligence was raised by the point either as to boys or adults. No instruction upon that subject was requested. The point as stated was exactly true .and should have been affirmed without qualification. Even as to boys “ the employer is not responsible for those injuries to which the employee voluntarily subjects himself.” There is a ■duty of instruction by the employer to young boys, as to hazards in the handling of, or working with dangerous machinery, but that subject was not embraced within any aspect of the point, and the statement of the rule in such cases, contained in the answer, is not sanctioned by any decision of this court or ■any other that we have been referred to. Moreover, the subject of instruction as to danger in the use of machinery was not germane to the point or to the case. The boy was not required to use any machinery, dangerous or ■otherwise, in prosecuting his work of sweeping or of cleaning the boxes containing the sediment, and the rule was therefore inapplicable to the facts of the case. As to the elevator the boy not only admitted that he was fully instructed by Rote, but also that he understood its operations and had actually used it himself sixty or seventy times before the accident. The injury resulted entirely from a most negligent act of the boy in going upon the doors when he was momentarily expecting the elevator to ascend, and knew from frequent observation precisely what the elevator would do when it did ascend. While it is perfectly true that he could not be charged with the consequences of contributory negligence, it is equally true that the defendants would not be liable because of the boy’s negligence. Nor would it be true that they would be liable — 282 — for a mere omission, to give him a specific instruction that he must not stand astride the doors when he was endeavoring to have the elevator come up. As well might they be- held culpably negligent for not warning him that he must not jump down the open hatchway when the elevator was not there. There is but a single feature in the case which could possibly carry it to the jury, and that is whether the boy told the truth when he said that Rote told him he should stand on the door and open it, or try to open it, in order to find out who was using it. Even as to that his testimony was self-contradictory. He first says, “ If they would answer, he told us to get on the doors to find out who was using it,” and in the very next sentence he testified that Rote said, “We should open if nobody answered on the rod; if we pulled it up and they pulled it down again we should get on the door and find out what they were using it for.” It is a most improbable statement at the best, and as it was most' positively contradicted by Rote, and as he was flatly contradicted as to this very subject by three other disinterested witnesses, the only question in the case was whether he was to be believed. Upon that subject the. jury should have been most carefully instructed, as in all similar cases. They should have been told that the only evidence in support of the allegation was the greatly interested testimony-of the plaintiff himself, entirely uncorroborated and unsupported by any other testimony, while on the other hand he was flatly and positively contradicted by the evidence of four disinterested and unimpeached witnesses. Instead of repeating to the jury several times over, in the general charge and in the answers to the several points of the defendant, the rule as to the duty of instruction in regard to the using of dangerous machinery, and in the most extreme and exacting terms, a rule which had no application in the facts of this case, the jury should have been told that the only question for them was whether the story told by the boy as to the instructions to go on the doors given him, as he said, by Rote, was true, and that if-they believed the four disinterested witnesses there could be no recovery. These remarks are all applicable to the answers made by the court to the fourth, fifth, sixth and seventh points of the defendant, only in a much stronger degree. This is especially — 283 — the case with the fifth and seventh points. The fifth was: “ If the jury believe from all the evidence that the plaintiff in getting on the door of the elevator, acted in violation of his in-. structions to keep away from-the door of the elevator and that his injury was caused by his so doing, the verdict should be for the defendant.” Of course this was exactly true and should have been affirmed just as.it stood. For if the boy had received such instructions the defendants had performed their duty in that regard and were hot negligent, and in that event there could be no recovery. Yet the court answered by repeating the same rule of duty as to instruction which they gave in answer to the second point. In tjie strictest technicality this answer could not be true because if the defendants warned him that he must not go on the doors, they did sufficiently instruct him as to the very danger which caused his injury. For the reasons stated, we sustain the fifth, sixth, seventh, eighth and ninth assignments of error. We sustain the tenth because that part of the charge belittled the effect of the contradictory evidence, which we regard as of the greatest importance in the case, and also because ittakes away all the effect of the orders given by Rote to the boy by saying that, even if the jury believed that the orders were given, yet if he did not properly instruct the boy, there would be such negligence as would entitle the plaintiff to recover. We cannot possibly assent to such a proposition for the reasons already stated. The charge on the subject of damages was exceedingly meagre, yet we cannot say it was error. The other assignments Ave do not think material and they are not sustained. Judgment reversed and new venire awarded.