Bolton v. Ovitt

Rowell, O. J. The risk of holding the cap in place with his hand was not an ordinary risk-incident to the work the plaintiff was hired to do, for the cap was not made to be held in place by the hand, but by a nut on a bolt; and when the-defendant set the plaintiff to holding the cap with his hand, he subjected him -to an extraordinary risk, and one that the plaintiff did not assume, unless he knew and comprehended it and how to avoid it, or it was so plainly observable that he will be taken to have known and comprehended it and how to avoid it; and the burden was on the plaintiff to show non-assumption, we will say for present purposes. But whether he was to be taken to have assumed that risk, was an open question, depending upon whether he understood the danger from which his injury resulted; and if yes, whether he had sufficient mental and physical capacity to regulate his conduct in a manner adapted to secure his safety as effectually as the circumstances admitted. The defendant says there was no evidence tending to show want of understanding and capacity in these respects, and that therefore his motion for a verdict should have been sustained. But, by all the authorities, the plaintiff’s tender age and consequent lack of experience tended to show such want, and made it a question for the jury; and in determining it, the jury had a right to consider the appearance of the plaintiff in court and on the stand. Disotell v. The Henry Luther Co., 90 Wis. 635, a ease of this kind in which the plaintiff was eighteen years old. Hence, defendant’s motion for a verdict was properly overruled. The plaintiff’s mother was allowed to testify that he had “grown a good deal” since the accident, which was a year, and a half before. It is objected that this was error, because no [367] question was made by either party but that the plaintiff was physically able to perform the work; because the testimony could not enlighten the jury, and would lead them to speculate on the plaintiff’s size; because it was susceptible of different conclusions by different persons; and because the fact that he was small, did not bear on his capacity to understand and comprehend the danger. But, as the plaintiff’s tender age and consequent lack of experience tended to show his physical inability, he thereby questioned that he had such ability; and the fact that he was small, as the last objection phrases it, bore upon that question. As to the testimony not enlightening the jury and leading them to conjecture, it is true that evidence should afford a basis for belief and not merely for conjecture; but this testimony afforded a basis for belief that the plaintiff was smaller at the time of the accident than at the time of the trial, though it did not' show with any certainty how much smaller; and it was not necessary that it should in order to be admissible; it was admissible for what it was worth. That different conclusions could be drawn from it by different persons goes only to its probative quality. The question of its admissibility lies back of that. There was no evidence that the defendant knew the exact age of the plaintiff at the time of his employment; but he had known him since he was a small boy, and had seen him around a good deal since he was old enough to be around with other boys.' In his opening argument to the jury, the plaintiff’s counsel said he claimed that the defendant was negligent in putting the boy to work where he did, and that the defendant had notice of his incapacity when he hired him. The defendant’s counsel objected that there was no evidence to support the claim. But the plaintiff’s counsel continued to argue that the defendant had such notice, and that the boy himself was that notice, and that he claimed no other. The defendant’s counsel kept objecting, and was allowed an exception. The court then elicited from the plaintiff’s counsel that as there was no dispute about the boy’s age, and he had been around there enough so that the defendant must have known substantially what his age was, he argued that an inference could be drawn as to the capacity of the boy, and that the age and size of the boy were notice [368] to the defendant that he was not of mature years, and not, as measured by boys in general, of sufficient capacity. The court then said: “Your argument is, that the apparent age and size of the boy as the defendant knew him, was notice to the defendant that he had not the capacity of a mature man?” Counsel said that was his argument, and that that was the only thing he claimed. The court thereupon said to the jury that they were instructed, and that the court held, that plaintiff’s counsel might argue that the apparent age and size of the boy were notice to the defendant that he had not the capacity of a mature person, and that anything further than that they were not to regard. Thereupon plaintiff’s counsel said: “I withdraw anything I have said inconsistent with the statement of the court; that is all I claim. ’ ’ This action on the part of the court, taken in such good time, and the complete withdrawal and disclaimer of counsel, were, we think, effective to blot out from the minds of the jury any wrong impression they might have got from the argument, unless we say that the court erred in allowing counsel to argue as it finally did. But this cannot be said, for it is undoubted law that the age and size of the boy were notice to the defendant that he had not the capacity of a mature person for the work in question. There was no evidence that the plaintiff suffered pain, except what the injury itself afforded. In his closing argument, plaintiff’s counsel, for the first time, claimed damage for pain and suffering. To this the defendant objected that there was no evidence of pain and suffering, and that the claim should have been made in the opening. But the court held that there was evidence warranting the claim, and allowed the argument to proceed, telling the defendant that he might reply. But he did not reply, nor ask leave to meet the claim in any other way. He now insists that this was error, for that the injury itself was no evidence of pain, but that there should have been some word of testimony to show it; and Curtis v. Rochester etc. R. R. Co. 18 N. Y. 534, is relied upon as in point. But it is not in point. This question was not involved in it. We think the ruling well within the doctrine of judicial notice, which is based upon the maxim that what is known need not be proved, and it would seem that nothing can be better and more commonly known than that a bodily injury of this character and severity causes [369] pain. But it is argued that however it might have been formerly, yet now, under the modern treatment of such cases, it is well known that the patient cannot recall a moment of pain or suffering in a large number of eases; that aseptic surgery, the use of anesthetics, and the great strides of modern science in the treatment of such injuries, have practically eliminated bodily pain and suffering, so that it would be practically impossible to draw a correct inference that pain and suffering ensued merely from the fact of injury; and certainly that it would be impossible, in these days, to say--how much or how long the injured person suffered, if at all. But however this may be, there is nothing in the ease to slmw that the plaintiff received any such treatment. All that appears is, that he “was taken to a surgeon, who dressed the wound.” The defendant further says that if there had been any testimony offered to show that the plaintiff suffered pain, he could have successfully contradicted it; but that no such opportunity was given him, and that he was thereby deprived of a right, for which there should be a reversal. But it was discretionary with the court to allow the claim to be made in the close though not made in the opening, and no right of the defendant’s was thereby infringed, for he had no right at that stage of the case to meet the claim with testimony. He could do that only.by leave, and that he did not ask for. Judgment affirmed.