Van Wyck v. Dickinson

Ostrander, J. (after stating the facts). The most favorable construction which can be placed upon the testimony for plaintiff is that the key, which was a proper part of the press, had worked out of position so that it projected some, but very little, beyond the end of the shaft. ■ It is not a common thing, but these keys do sometimes work loose. In other respects the press was in perfect order. It was the one upon which, under instruction, plaintiff had three months before learned to work. His duty was to start, feed, and stop it. In starting and stopping it he used a lever. All of its parts were visible, and its speed was not such as to put the key out of vision. [421] He was standing at his work, and when the sheets fell to the floor, at the side of, not under, the machine, he walked to the side of the machine, stooped to pick them up, and brought his sleeve in contact with the gearing. He admits his knowledge of the danger of approaching too closely to the machinery, and that in picking up the papers he took no account of how close he approached his arm to the gearing. How long the pin had been out of position does not appear, and it is doubtful if the testimony reasonably supports an inference that the projecting pin increased the danger. Indeed, plaintiff’s testimony leaves it in doubt whether his sleeve was not caught in the gear, instead of on the pin. The most ordinary care would have avoided danger. . We are asked to give some effect to the statute (Act No. 113, Pub. Acts 1901), which forbids the employment of children under the age of 16 years in a manufacturing establishment at employment where life or limb is endangered. Section 2 of this act was amended in 1905 (Act No. 1?1), and it appeared that the mother of plaintiff, before defendant hired the boy, made the sworn statement required by said section. It is not averred that it was negligence to employ plaintiff in this establishment, at this work. Borck v. Nut Works, 111 Mich. 129. It is contended that, so long as the facts show an employment prohibited by the statute, it is immaterial, so far as the question of defendant’s negligence is concerned, whether the statute is declared upon or not. If by this is meant that it is unnecessary to aver an employment such as the statute prohibits, the contention is not sound, and the point is ruled by the case above cited. Whether a defendant is conducting a manufacturing establishment within the meaning of the statute, and whether the particular employment endangers life or limb, are questions of fact, and if it is claimed that the facts exist the rules of pleading demand a tender of the issues so that defendant may be informed of the case he is required to meet. The case of Ferguson v. Gies, 82 Mich. 358 (9 L. R. A. [422] 589), relied upon by counsel, is not in point. In that case plaintiff’s right of action existed at common law, of the rule of which the statute was held to be declaratory. The judgment is affirmed. . , McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred.