Neilon v. Marinette & Menominee Paper Co.

TayloR, J. In submitting the case to the jury, the learned circuit judge proceeded upon the theory that the plaintiff could not recover unless he satisfied the jury from — 583 — the evidence that the foreman, McAlpine, directed him to do the work he alleged he was doing when he was injured. This is evident, not only from the nature of the questions submitted to the jury, but from his instructions to them. After some general remarks, and some reference to the evidence in regard to the question as to whether McAlpine directed the plaintiff to wipe or clean the gearing, as plaintiff alleged he did, the learned judge said: “Row, the first question that you must determine is, What are the facts? Was he instructed to go in there and wipe these cogs of this gearing while the machinery was in motion-? That is the first and most important question in the case, and, if you find that he was not so instructed, . . . So, so far as that question is concerned, it resolves itself simply into a question of veracity, which you are to determine from the testimony of the two witnesses, in connection with all the other circumstances in the case; and if you find that he was not instructed to do that work, then it appears that he was doing something that nobody authorized or directed him to do, and the defendant under no theory of the law is responsible for an injury that occurred to him while he was doing that.” This instruction is the most favorable view of the case for the defendant, and it certainly cannot be complained of by the defendant, although the plaintiff might perhaps have been entitled to recover, even though he had “ not been instructed to wipe off the gears of the driers,” which was the question submitted to the jury, and not that he was instructed to wipe the cogs of the gears; and, so far as appears from the record, there is no claim made that the plaintiff was instructed to wipe the cogs of the gears, or that he was doing that, or attempting to do it, when he was injured. He was certainly liable to be injured if he attempted to wipe off any part of the gears with a rag while they were in motion. There was no necessity for his attempting to wipe the cogs of the gears in order to — 584 — endanger himself. But, as the court limited the plaintiff’s right to recover on an affirmative answer to the first question submitted, it seems to us the only real question in the case upon the facts is whether there is any evidence to sustain the finding of the jury upon that question. Certainly the plaintiff, by his testimony, affirmed that fact; but it is said his statement is contradicted by the testimony of McAlpine, and that the presumptions strongly favor the denial of McAlpine. The fact, however, remains that this inexperienced boy was in fact at work about these gearings at the time he was injured, and while they were in motion. This is established from the fact that the rag which he claims to have been using was found in the gearing. It was certainly a fair argument to submit to the jury that the boy would not of his own 'volition, and without direction from some one he supposed had authority to direct him, have been engaged in that work. It is fair to presume that he at least supposed he had been directed to do what he'was doing when the accident happened. McAlpine says that he set the boy at work back of the machine (where these gears were) in the forenoon, and that he may have told him to wipe the frame of the machine, but that he did not tell him to clean the gearing. On this evidence, we cannot say that the jury were not authorized to find that the statement made by the boy was true. This fact having been found in favor of the plaintiff, the negligence of the defendant in directing this boy to do this dangerous work is clearly established. In a case of this kind, the direction of the foreman who employs and directs the work of the employees is held to be the act of the master. See Coombs v. New Bedford Cordage Co. 102 Mass. 599; Gilman v. E. R. Co. 13 Allen, 433; Smith, Mast. & Serv. (3d ed.), 212; Grizzle v. Frost, 3 Fost. & F. 622; Jones, v. Florence Mining Co. 66 Wis. 268, 283; Beach, Contrib. Neg. § 132, and cases cited. — 585 — The only other defense to the plaintiff’s right to recover is that the danger was so plain and open to the observation of any one that a boy of fourteen years wholly unacquainted with the working or use of machinery, if he undertook to obey the order, assumed all the risks attendant thereon, and cannot therefore recover; and the learned counsel for the appellant contend that the second question, which submits that question to the jurjq should not have been submitted to them as a question of fact, but should have been decided by the court in favor of the defendant, as a question of law. We cannot agree with the learned counsel for the appellant in this contention. It is not at all clear to our minds that a boy of about fourteen years, wholly inexperienced in the use of, or in working about, machinery, would clearly comprehend the dangers attendant upon the' work he affirms he was directed to do. If he was directed to do the work, as we must believe he was for the purposes of this case, without any caution or warning on the part of the person directing it to be done, he would be very likely to undertake to do it without much thought as to its being dangerous or otherwise. The danger attendant upon the work would not be likely to occur to him, as he says it did not. It is this tendency to thoughtlessness on the part of a boy, when without experience, w'hich makes it incumbent upon the experienced master to caution him when he puts him in a place of danger. We think that, under the decisions of this court and-of other courts, the second and third questions were properly submitted to the jury as questions of fact, and, upon the evidence, were properly answered by the jury. These questions seem to be so well settled by the courts that we deem it unnecessary to cite more than a few of the leading authorities "which affirm them. Coombs v. New Bedford Cordage Co. 102 Mass. 572; O’Connor v. Adams, 120 Mass. — 586 — 427; Dowling v. Allen, 74 Mo. 13, 16, 17; Hickey v. Taaffe, 105 N. Y. 36, 37; Sullivan v. India Mfg. Co. 113 Mass. 399; Finnerty v. Prentice, 75 N. Y. 615; Jones v. Florence Mining Co. 66 Wis. 268; Nadau v. White River L. Co. 76 Wis. -. We have carefully read the instructions given by the learned circuit judge to the jury, and are satisfied that they were 'Sufficiently favorable to the defendant, and that they contain nothing which could have prejudiced the defense. The exceptions taken by the appellant to the reading by the plaintiff of some parts of the deposition of the witness Humphreys we do not think well taken. The testimony of this witness had been taken on the motion of the defendant. On the trial, the defendant contented itself by reading only a small portion of such deposition, and thereupon the plaintiff. offered to read other portions thereof on his behalf. No exception is taken as to the right of the plaintiff to use the parts of the deposition taken by the defendant, and not read by him on the trial, when the parts so offered to be read were competent evidence in the action. In this case, the objection made by the learned counsel for the appellant is that the parts offered to be read are not competent evidence in this action. The object of the testimony of this witness was to prove that it was not the custom of the company to wipe these gearings when they were in motion, and in the part of the deposition read by the defendant he so testified. The defendant on the trial had also given evidence tending strongly to show that the custom was not to wipe these gearings at any time. The. answer of the witness Humphreys tended to contradict this claim of the defendant made by the testimony of its other witnesses, and was clearly competent for the plaintiff, for the purpose of contradicting the other witnesses. The defendant seemed to think it important to its defense to show .that the custom was not to wipe these particular gears at — 587 — any time, whether they were in motion or not, and it was competent, therefore, to controvert this claim by the testimony of other witnesses. We think it was competent and p’ertinent to the defense to prove, if it could, that it never was the custom to wipe these particular gearings at any time. This fact would tend strongly to sustain the contention that the foreman did not order the plaintiff to do so at the time in question; it went to the credibility of the opposing witnesses. The evidence being competent, and admitted for the defendant, there was no error that.it can complain of in permitting the respondent to show the contrary. The exception taken to the ruling of the trial judge, upon the motion of the defendant to strike out a portion of the answer of Humphreys to one of the interrogatories in the deposition, denying such motion, is also alleged as error. That part which the defendant moved to suppress reads as follows: “ As I should have considered that a part of his work.” The interrogatory, to which this is a part of the answer, reads as follows: “Did you, at any time, prior to such accident, set the plaintiff to work wiping the gearing of the paper rollers, or any other gearing in the paper-machine, while the same was not in motion.” The answer is, “ I don’t remember whether I set the plaintiff to work wiping the gearing of the paper rollers or not. I may have done so when the machine was not in motion, as I should have considered that a part of his w'ork.” The interrogatory was one propounded by the defendant, and not by the plaintiff, and no objection was made to such interrogatory by the plaintiff. The plaintiff had therefore the right to read the answer so far, at least, as it -was responsive to the question, under the decision of this court in Hazleton v. Union Bank, 82 Wis. 84, 46. It is urged that the part of the answer which the defendant moved to suppress was not responsive to the question, and should therefore have been — 588 — suppressed. We are not entirely satisfied that the objection that this part of the answer is not responsive to the question is well taken. .We think it would have been competent as cross-examination by the plaintiff upon the question propounded by the defendant, so that the answer was competent evidence in the case. The part of the answer moved to be stricken out is at least explanatory of the responsive part of the answer, and therefore responsive. But, if it should be held as not responsive to the interrogatory, still it was, under the ruling of the trial court, quite irrelevant, and could not have prejudiced the defendant. As the case was submitted to the jury, it became a matter of no importance what had been the custom in regard to wiping the'gearings prior to the accident. .The learned judge expressly directed them that, unless they found that McAl-pine directed him to do the work he undertook to do while the machinery was in motion, the plaintiff could not recover. The effect of this direction was to say to the jury, “No matter whether it had been the custom to wipe these gearings when the machinery was not in motion or not, and no matter whether the plaintiff had been instructed to wipe this machinery when not in motion, still the plaintiff cannot recover in this action, unless you find that Me Alpine directed him to wipe the gearings at the time, of the accident and when the machine was in motion.” All the evidence, therefore, given on the part of the defendant, tending to show- that it was not the custom to wipe this particular machinery at any time, whether in motion or not, became immaterial, except as it might indirectly bear upon the credibility of the witnesses for the defendant, who testified that it was never wiped at any time. The bearing of this part of the answer objected to is too remote from the main issue in the case to justify a reversal of the judgment, even if it should be held not responsive. It seems to us, after a careful consideration of the whole — 589 — case, that the defendant has had a fair trial upon the evidence, and that the law of the case was so submitted to the jury by the learned circuit judge as not to prejudice the Tights of .the defendant. It is said the damages are excessive. That question, within reasonable limits, is a question for the jury, and there is nothing in this case which indicates that the jury have been actuated by prejudice or other improper motives in determining the question of damages. It is also urged that the learned judge, in the latter part of his instructions, directed the jury in such way that they might have found damages in favor of the plaintiff for loss of services during his minority. We do not think the jury were or could have been misled upon that point, under the instructions of the court as a whole. They were expressly told that they must not assess any damages for loss of services during his minority. The jury were not likely to be misled by the general language used at the close of the charge. Properly understood, the latter part of the instructions is not in conflict with the former specific instructions on that point. By the Oourt.— The judgment of the circuit court is affirmed.