Slack v. Curry

Bird, J. While defendant was engaged in moving a house on Forbes street in the city of Kalamazoo, the plaintiff, a boy of two years of age, took hold of a wire cable which was passing through a pulley and his hand was drawn into it and a portion of his thumb amputated. The pulley was fastened to a telephone pole in front of plaintiff’s home, near where he was accustomed to play. The negligence with which the defendant was charged was his failure to protect the pulley with a mechanical guard and also for his failure to keep plaintiff away from the cable and pulley. A trial resulted in a verdict for defendant, and plaintiff complains of several errors committed by the trial court during the course of the trial. The defendant was permitted to show that the [439] agencies employed in moving the building were the usual and customary ones in moving buildings, and that it would destroy the usefulness of the pulley to place a mechanical guard over or around it. This testimony was taken subject to the plaintiff’s objection that it was incompetent to show what the custom was of other movers in that vicinity, and he argues that, because other movers were negligent, it would not excuse the negligence of the defendant. This testimony was admitted by the court, and the jury instructed that they had a right to consider it in determining whether the defendant was guilty of the negligence charged. We are of the opinion that this testimony was admissible. No complaint is made that the defendant was committing an unlawful act in moving the building upon the highway. The complaint in the declaration is aimed at the manner of doing the act. Ordinarily, when the question arises as to whether the doing of a lawful thing is done in a negligent manner, such testimony is admissible. Larson v. Ring, 43 Minn. 88 (44 N. W. 1078); Kelly v. Railway Co., 28 Minn. 98 (9 N. W. 588); Kolsti, An Infant, v. Railway Co., 32 Minn. 133 (19 N. W. 655); Missouri, etc., R. Co. v. Holley, 30 Kan. 474 (1 Pac. 554); Boick v. Bissell, 80 Mich. 260 (45 N. W. 55). Complaint is also made because several witnesses were permitted to testify as to what the custom of defendant’s employees was in watching and protecting the children who might gather around the apparatus. This testimony appears to be objectionable on the ground of incompetency (Blanchette v. Railway Co., 175 Mass. 51 [55 N. E. 481]), but we do not think that the. case should be reversed on this ground, as nearly all of the witnesses, after testifying upon the subject of custom, went into detail and related what was done by them on this particular day in protecting the children. Of course it was not [440] important as to what they were • accustomed to do; it was what they actually did in watching and protecting the children that was important in determining the care which was exercised. It appeared in the testimony that the plaintiff was left by the mother shortly before the accident in the care of Ray Hartkee, a boy 10 years of age, who was living in plaintiff’s family. Hartkee testified upon cross-examination, over plaintiff’s objection, that the reason the Slacks had him in the family was to take care of the children. It is said that this testimony was incompetent and harmful because it carried with it the inference that the mother was careless in caring for him and therefore contributed to his injuries. If this view were taken by the jury, it must have been dissipated by the charge of the court wherein he made it very plain that the plaintiff could not be charged with contributory negligence on account of his extreme youth, and further that he could not be charged with the negligence of his parents. By reason of this instruction, we think no harm resulted to plaintiff’s case. Several exceptions are taken to the charge of the court. Most of them involve the same questions as are raised by the objections to the admissibility of the testimony. The charge in its entirety was a fair one, and we think the judgment of the trial court should be affirmed. Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, and Stone, JJ., concurred with Bird, J.