American Car & Foundry Co. v. Armentraut

• Decision Date: 21 February 1905
• Citation: 73 N.E. 766,214 Ill. 509
• Court: Illinois Supreme Court
• Parties: AMERICAN CAR & FOUNDRY CO. v. ARMENTRAUT.

214 Ill. 509

73 N.E. 766

AMERICAN CAR & FOUNDRY CO.

v.ARMENTRAUT.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, Fourth District.

Action by Koss Armentraut, by his next friend, against the American Car & Foundry Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.McKeighan & Watts and Wise & McNulty, for appellant.

Webb & Webb and Burton & Wheeler, for appellee.

This was an action of trespass on the case, brought in the circuit court of Madison county by Koss Armentraut, a minor, by his next friend, against the American Car & Foundry Company, to recover damages for a personal injury to the plaintiff, inflicted upon him while working for the defendant. The declaration consisted of one count, which alleged that the plaintiff was under the age of 14 years, and that his employment by the defendant was wrongful and negligent, and was the proximate cause of the injury; that he was working with a certain machine, in obedience to the commands and instructions of the defendant's foreman, and, while so engaged, his right arm was caught in the machine and was broken. Defendant's plea was the general issue. The jury returned a verdict in favor of plaintiff for $1,800. After overruling the defendant's motion for a new trial, the court rendered judgment upon the verdict. Defendant appealed to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed, and it now prosecutes a further appeal to this court.

The evidence tends to prove that on March 9, 1903, the plaintiff applied to the defendant for work in its shops at Madison, in Madison county. He was put to work at a machine used for cutting threads in taps. The foreman showed him how to operate the machine, and, after watching the plaintiff use it for a short time, left him. The drill of the machine which cuts the threads is held in place, while being used, by set screws extending out about one-half inch from the spindle of the machine. These set screws revolve with the drill at a rate of from 75 to 100 revolutions per minute. The machine is started and stopped by means of a lever on the left-hand side of the machine, and the left hand of the operator is used for operating that lever. Several taps are placed in a box on the machine below the drill while the machine is standing still. The machine is then started, and the drill is lowered, in order to bring it down to the box of taps, by a lever on the right-hand side of the machine. The right hand of the operator is used for operating that lever. When the drill has gone through and cut threads in all the taps in the box, the drill is then raised by operating the right-hand lever, the machine is stopped by operating the left-hand lever, and the taps are taken off the drill. The same operation is repeated for each succeeding box of taps to be threaded. About an hour and a half after the plaintiff had started to work at the machine, and while attempting to operate one of the levers, the set screws holding the drill in the spindle caught the right sleeve of the plaintiff's coat and twisted his right arm until it was broken. Plaintiff, at the time of the injury, was but 12 years old. Some of defendant's employés, including the foreman, testified that plaintiff stated when he applied for work that he was 16 years of age. Plaintiff, however, denied making any such statement.

At the close of plaintiff's case, and again at the close of all the evidence, the defendant moved the court to give to the jury a written instruction to find the defendant not guilty. The court overruled the motion, and refused the instruction in each instance. The refusal of the peremptory instruction offered at the close of all the evidence is assigned as error. Other assignments question the action of the court in giving one instruction offered by the plaintiff, and in refusing instructions offered by the defendant.

SCOTT, J. (after stating the facts).

This action is brought under section 33 of chapter 48, Hurd's Rev. St. 1903, which provides: ‘That no child under the age of fourteen years shall be employed, permitted or suffered to work for wages at any gainful occupation hereinafter mentioned;’ and working in a manufacturing establishment is among the occupations thereafter mentioned in that statute. It is urged that the court should have directed a verdict because the evidence failed to show that the plaintiff was in the exercise of ordinary care for his personal safety at the time of the accident, and this presents the question whether contributory negligence, under the circumstances of this case, is a defense to an action brought under the statute above quoted.

Plaintiff was a mere child. He was set to work on a dangerous machine. He was...