Manufacturers' Fuel Co. v. White

Mr. Justice Scott delivered the opinion of the court: It is first urged that the court should have directed a verdict for the defendant because there was no evidence that the defendant ordered the plaintiff to use the animal, and that there was uncontradicted evidence that the plaintiff asked to be allowed to use the particular mule that injured him. We find, on examination of the abstract and the additional abstract, that there was evidence that the defendant did give the order as charged in the declaration and that the plaintiff testified that he did not ask to be allowed to use this animal. It is then said that the peremptory instruction should have been given because the proof did not show that the defendant had knowledge of the vicious and dangerous propensities of the animal, and that the uncontradicted evidence showed that the plaintiff had, or should have had, knowledge of such propensities, and that having such knowledge, or being chargeable therewith, he must be regarded as having assumed the risk. We are not able to agree with appellant on either of these propositions, and conclude that the motion for a directed verdict was properly denied. Instructions given did not require that the jury find, as a necessary element of plaintiff’s cause of action, that the animal had a vicious and dangerous propensity to kick mankind, and it is urged that a propensity to kick, which was merely an evidence of ill-temper and not the result of a desire to injure a human being, is not sufficient to establish the liability of the master, the owner of the animal, even where he has knowledge of its propensity and where the servant injured has no such knowledge and is not chargeable with such knowledge. A number of authorities have been cited by appellant in support of its position in this regard, but we find, upon examination, that the doctrine upon which it relies has not been announced or held applicable, in any case to which we have been referred, where a servant has been directed to use the animal in question in the performance of the duties of the employment. On reason we are unable to perceive any distinction between directing the use of an animal that is dangerous on account of its peculiar inclination to kick under certain circumstances, even though its efforts in that regard be not particularly directed against mankind, and directing the use of an instrumentality or appliance of a mechanical nature which is dangerous to the servant. By the plaintiff’s first given instruction the jury were advised that in determining the weight to be given the testimony of the witnesses they had a right to take into consideration, among other things, the intelligence or want of intelligence, capacity or want of capacity, of the persons testifying. It is urged that in some cases intelligence and capacity, or the lack thereof, may be proper for the consideration of the jury, in others not. It is too plain for argument that in every case where there is a conflict in the evidence an instruction of the character of this one is proper. The only objection made to the second instruction given at the request of the plaintiff which is entitled to consideration has been disposed of by what we have said in reference to the point that there could be no recovery unless the animal’s efforts in kicking were habitually directed against some member or members of the human family. The third instruction given at the request of the plaintiff was as to the measure of damages. It has, in substance, heretofore received the approval of this court, but it is objected that it permitted appellee to recover for loss of time and for the diminution of his earning capacity during his minority. It appears that both his parents are dead, and we think it fairly inferable from the evidence that both were dead at the time he received the injury. It does not appear that any other person stands in loco parentis to him. In Partridge v. Arnold, 73 Ill. 600, it was held that a father does not have any present valuable property in the future labor of a minor son, and from Scott v. White, 71 Ill. 287, it appears that where the minor has been emancipated he is entitled to maintain a suit for his wages. In Barnes v. Barnes, 50 Conn. 572, it was held that a minor son becomes emancipated by the death of his father so as to relieve him from the obligations of a contract for his services during the term of his minority, made by his father. From these authorities we conclude that a minor whose parents are deceased and to whom no one stands in loco parentis is in precisely the same situation, so far as contracting for and being entitled to receive his own wages is concerned, as though he had been emancipated by his parents. That being true, appellee, if he have a valid cause of action, is entitled to recover for loss of time and for diminution of his earning power, if any, during minority. The third instruction given at the request of the defendant was to the effect that no damages should be awarded for mental suffering, except that suffering was the immediate result of physical pain. The instruction, as requested, concluded with the following words: “No damages should be assessed for humiliation or disfiguration of appearance.” The court modified the instruction by striking out the language just quoted. In this there was no error, as there was no evidence to which that part of the instruction could apply. The court refused eight instructions asked by the defendant. The objections to the first, second, third, fifth, sixth and eighth of these are disposed of by what has already been said in this opinion. Defendant’s fourth refused instruction deals with the question of assumed risk, and is fully covered by the eleventh instruction given at its request. Defendant’s seventh refused instruction deals with the question of scienter, and the proposition therein contained is found in the second instruction given at the request of the plaintiff. In offering evidence to show the propensity of the animal in question when overloaded or whipped, counsel for appellee asked a number of questions of men who had been employed in and about the mine where this animal was used, which were objected to, some on the ground that they called for conclusions, others on the ground that they were immaterial and irrelevant, others on the ground that each called for an expert opinion in matters relating to which the witness had not qualified as an expert. We have considered these various interrogatories in connection with the answers given by the witnesses, and are of the opinion that the cause of the appellant was not prejudiced by the action of the court in overruling the objections. Appellee has filed a further abstract and moves to tax the costs thereof in this court. We are of the opinion that the original abstract was not as full and complete as it should have been and that the additional abstract was necessary. Appellee’s motion will accordingly be allowed. The judgment of the Appellate Court will be affirmed. Judgment affirmed.