Kolodziejski v. Seestadt

Hooker, J. The plaintiff was injured while in defendants’ employ, engaged in removing table tops from a sanding machine. The injury was the result of an endeavor to straighten some material that was going through the sander; his hand getting between the rolls. He was about 14 years old, and was endeavoring to straighten [39] the material at the command of the operator of the machine, who stood opposite to him. He had done it a few times before. The only negligence relied upon is a failure to sufficiently instruct and warn the plaintiff against the danger of putting his hand between the rolls. The defendants offered no testimony, and we suppose that a verdict and judgment were rendered for the plaintiff. These should be, but are not, shown by the record, so far as we have been able to ascertain. This was a simple machine, consisting of a table with four sets of double rollers, between which the lumber passed, being drawn forward toward the plaintiff’s end of the machine by the rollers when in motion. Between the lower rollers were the sanding drums, which revolved rapidly. Above them were some loose rollers, which served to press the lumber down upon the sanding drums; said loose rollers being thereby caused to turn. When this machine was not in use, its construction was plainly to be seen and easily understood, and it must be admitted that a boy of 14 may be expected to know and think of the danger of getting his hands between such rollers; and, unless we can say that the case is within the principle of Allen v. Jakel, 115 Mich. 484, we can see no reason for sustaining his judgment. The case is very similar in its facts to Allen v. Jakel; about the only difference being that in that case a girl, and in this a boy, was hurt. It may be that this should be sufficient to justify the refusal to apply the rule in that case, for usually a boy’s habits of life give him a greater knowledge and better understanding of mechanics than a girl of the same age usually has. Perhaps a jury should say that it was unnecessary to warn him, because he should be supposed to know all that the warning could impart. We think, however, that the question should be left to a jury, as in the Allen Case. This was a young boy. It appears that 'he was expected to assist in straightening material in the machine. He would be expected to obey the command of his older fellow workman. There may have been a very [40] dangerous method, and one comparatively safe. We cannot say, therefore, that it was error to leave to the jury the responsibility of determining whether the employer was derelict in omitting to instruct and warn him. If he had been instructed, or if he knew the dangers and the proper method of doing his work, without instruction, the jury should not have given him a verdict under the charge. See, also, Ertz v. Pierson, 130 Mich. 162. It is claimed that there is a fatal variance between the declaration and the proof, for the reason that the former alleged an injury to plaintiff’s right hand, and the testimony conclusively proved that it was the left hand that was injured. This variance was not called to the attention of the court below; the proof being objected to as “ irrelevant, immaterial, and incompetent under the pleadings in the case.” This did not apprise the court of this claim. Had it done so, he should, and doubtless would, have permitted an amendment. The case had been tried once, and defendants cannot have been surprised by the proof. We have said that counsel should make clear the grounds of their objections, and that such general language as was used in this objection does not do it, and will not suffice as a ground of reversal, where the proceedings justify the conclusion that it was not understood by the court. Error is assigned upon the failure of the court to give several of defendants’ requests to charge. Examination of the charge as given satisfies us that every proper request was covered, and that the charge would not have been improved by substituting the requests. Finally, we are asked to reverse this cause, upon the ground of the smallness of the verdict, which is said to clearly indicate a compromised verdict. We cannot say this. The judgment is affirmed. Carpenter, C. J., and Grant, Montgomery, and Moore, JJ., concurred.