Vanesler v. Moser Cigar & Paper Box Co.

GOODE, J. (after stating the fapts.) — The main contention urged in behalf of the defendant' is that the evidence shows no breach of any duty owed to the plaintiff; that the task assigned to him by the foreman, the only pérson having authority, was not to clean the machine, but to carry papers from place to place and run errands; a task not involving danger nor the use of machinery, and, therefore, calling for no instruction or advice in regard to the perils of the factory or working about the machines. This statement of the facts somewhat contracts the sphere of plaintiff’s duty as it is to be deduced by fair inference from the evidence. It was shown without dispute that among his tasks was clearing the floor under the machine which hurt him, of scraps of paper and other trash. As we glean from the evidence, .this involved working about the machine and was to some extent dangerous; though it did not involve danger of injury from the particular part ,of the machine where plaintiff’s hand was torn. It will be observed that the learned trial judge authorized a‘verdict for the plaintiff only on a finding that the foreman saw him at work cleaning the machine and permitted him to continue at that work without caution or advice. This was dealing liberally with the defendant; for, without deciding the point, it strikes us that a lad of such youth as the plaintiff, should have been instructed regarding the dangers of the factory when he was set to work in it at 'the tasks conceded to have [628] been assigned to him. The place was full of complicated and dangerous machinery, in the midst of which the boy had to work; and, considering his years and inexperience, and the lack of discretion and judgment usually shown by boys of his age, some warning was due. The argument on the appeal is that because Wetzel, or any other competent authority, did not set the boy to clean the machine, Wetzel was under no obligation to warn him as to the danger, even if he saw him at that work; and that the defendant company is not liable if Wetzel permitted him to go on with it without warning or caution. It is conceded that if he had been directed to do the particular work at which he was hurt, without previous advice or warning, a liability would exist. A very fine line would have to be drawn to say Wetzel had nothing to do with plaintiff’s cleaning the machine except to permit it. Wetzel told him to clear boxes and papers off the top of the machine, and the distinction between clearing off the top of it and cleaning the rest of it is too subtle for a court safely to depend on in determining whether a demurrer to the evidence should have been sustained. If Wetzel told the plaintiff to clear the top of the machine while it was in motion, this was a task so similar to cleaning the machine as a whole, that plaintiff justly might have understood that he acted in the line of duty when he cleaned the rest of it by direction of the man in charge; especially as it was part of his regular duty to clean papers from under the machine. Passing from these comments on the evidence, which show how narrow is the margin between' the conceded duty of the plaintiff and the work which caused his injury, and which the defendant says was not his duty, let us look at the law of the case.. The general rule of law is that a minor of such extreme youth can not be assumed to know the danger of working with or about dangerous machinery and must be cautioned and instructed when he is set to work about it, on pain of [629] negligence being imputed to tbe master for failure to instruct Mm, if he is injured. Dowling v. Allen, 74 Mo. 1; Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio 283, 3 L. R. A. 385; Brazil Coal Co. v. Gaffney, 119 Ind. 455, 4 L. R. A. 850; Wharton, Negligence, 216. The text-writer just cited says that if a child is employed, the employer must look out for the child and see that it is not exposed to injury from machinery whose dangers an operative of ordinary experience and intelligence would perceive. The child must be instructed sufficiently to enable Mm to avoid the danger. The same doctrine is declared in Sullivan v. India Mfg. Co., 113 Mass. 396; Hickey v. Taaffe, 105 N. Y.,26. In the former case it was aptly said that the dangers of a particular work may be great and apparent to persons of capacity and knowledge on the subject and yet a person, from youth and inexperience, fail to appreciate them; and that it is a breach of duty on the part of a master to expose an individual of this character to such dangers without instructions or cautions which will enable him to comprehend them. The main instruction given by the court was conservative in its statement of the defendant’s duty to have the plaintiff cautioned against the danger of injury by the machine around which his regular duty lay,, and the other machines in the factory. The evidence is clear that the boy was wholly without experience of machinery and had but little, if any, conception of the peril to which he was exposed. It is conceded that the foreman knew his youth and the novelty of the work to him, but gave him no instruction. Such conduct toward a boy ten years of age, employed in a factory where there were many complicated machines moved by steam through the agency of cogs and pulleys, is not the kind that a court can say imperatively was right and that therefore the question of its propriety should not have been left to a jury. As to the refused instructions: It is not essential [630] to plaintiff’s recovery that Griimmel should have been authorized to order him to clean the machine; for the absence of his right to recover was failure to warn him after the foreman (Wetzel) knew he was engaged in hazardous work. For the same reason the second refused instruction was erroneous. The third one was erroneous because, contrary to its assumption, the plaintiff was set to other tasks than carrying boxes from one place to another and running errands. It was, as stated, part of his duty to clean up about this machine. The instruction was further erroneous in debarring him from a verdict unless the foreman Wetzel directed him to clean the machine. We have held it was a good ground of action that the foreman saw him at the task and, knowing it was dangerous work and that plaintiff was young and inexperienced, permitted him to go on with the task without warning or advice. It is said the verdict is exorbitant, but our opinion is the other way. The boy lost his thumb and the other injuries to his arm and hand were extremely severe and caused great suffering for a long time. The judgment is affirmed. All concur.