Rookstool v. Cudahy Packing Co.

Sedgwick, J. The trial court instructed the jury to find a verdict for the defendant, and by our former opinion, ante, p. 118, the judgment of the trial court was reversed. On motion for rehearing the case has been again submitted upon an additional brief and oral arguments. The plaintiff, who was a minor, brought the action by his mother as next friend to recover damages caused by an injury in an elevator while the plaintiff was in the employment of the defendant company. The petition alleged, “plaintiff herein is a minor of the age of 18 years,” and alleged that the accident occurred on the 22d day of May, 1910, and that “plaintiff was at that time less than 15 years of age.” As the action was begun on the 23d day of October, 1913, the allegation that he was then 18 years of age was an allegation that when the accident occurred he was more than 14 years-of age, and the direct allegation that when the accident occurred he was less than 15 years of age must also, as against the pleader, be construed to mean that he was past 14 years of age. The petition counts entirely upon a common law liability, and not upon the statute which prohibits the employment of a child under 14 years of age, or the statute which prohibits the employment of one under 16 and over 14 years of age, except on certain conditions. The allegation in the petition in that regard was: “Plaintiff further alleges that at that time, and on the date aforesaid, plaintiff herein was a minor, and was not familiar with nor did he appreciate the dangers incident to the operation of [853] said elevator, nor did this minor plaintiff understand or appreciate the specific danger, the danger of looking into the elevator shaft in the manner hereinbefore set forth. And plaintiff further avers and alleges that the defendant company- failed and neglected to warn plaintiff of the danger of looking into the shaft of said elevator; nor did the defendant company warn this plaintiff of the danger of being caught by the descending elevator while looking into the shaft thereof.” If the employment of a child under 14 years of age is the cause of his injury, his employer would be liable for damages. It is not necessary to determine in this case whether the employer of such a child would be liable for any and all injuries that might occur to him while in such employment, without regard to whether said injuries depended upon his tender" years, since this record is conclusive that the plaintiff was more than 14 years of age. The plaintiff was himself asked upon the witness-stand to state his age, and stated that he was 18 years of age. If he was 18 years of age at the time - of the trial, he must have been more than 14 years of age at the time of the injury, according to the allegations of the petition. The plaintiff and his mother testified that at the time of the accident the plaintiff was 13 years of age. But this was several years after the injury, and must be considered as an error in computation on their part, rather than a deliberate intention without any explanation to deny the allegations of the petition, which were also under oath. This statute has not been frequently construed by this court. The section that prohibits employment between the ages of 14 and 16 years is followed by several sections from which it might be contended that this provision is rather in the interest of the education of the child than to protect it from unnecessary dangers as the former section does. However that may be, this court has said: “Plaintiff, having induced the court to adopt one theory, ought not to complain because a dif [854] ferent doctrine was not-followed.” Hankins v. Reimers, 86 Neb. 307. In that case the petition alleged that the deceased was under the age of 16 years, but the case was tried and submitted to the jury by the court under instructions upon the theory that the action was for the common-law liability, and, as no objection was made to so submitting it, the plaintiff was not allowed to count upon the' fact that the deceased was under 16 years of age. As we have already said, the petition in the case at bar counted strictly upon the common-law liability. There was nothing in the evidence or in the manner of trial that indicated any other theory of liability. It was upon that theory that the defendant asked the court to instruct the jury to find a verdict in defendant’s favor. No objection was made to the assumption that it was submitted as upon the commorn law liability, and the question of the effect of the statutes now being considered was first, presented in this court. The Reimers case is therefore in point. . The petition alleges that it was customary when the elevator was lowered to give a signal before passing each floor, and that in this case the operator of the elevator neglected to give such signal. This, however, would not justify placing oneself in the shaft to observe the location of the elevator. The plaintiff testified that there was a place at each floor to ring a bell and call the elevator; that there was a bell on the floor where he was hurt, and that he did not ring the bell, but stood there watching his friend; that a man on one floor who wanted the elevator to come to his floor would “ring the bell — push the button.” “Q. If he was on floor one he would give it one bell, or number two, two accordingly? Is that the way it was operated? A. Yes, sir. Q. And the elevator did not move unless that bell was sounded? A. Wasn’t supposed to, was the way I understood it.” This evidence shows that he fully understood how to use the elevator, and that putting his head into the elevator shaft had nothing [855] to do with the use of the elevator, but was a matter of idle curiosity. It is now contended that it was negligence to leave an opening in the shaft that permitted plaintiff to insert' his head. But there is no allegation in the petition that raises that question. Nothing is alleged about this opening in the shaft, and no defect in the construction of the elevator or shaft is counted upon. The alleged negligence of the defendant is not proved. The plaintiff’s unnecessary act, prompted by curiosity, was the cause of the accident. Our former judgment is vacated, and the judgment of the district court is Affirmed.