Barg v. Bousfield

• Decision Date: 30 June 1896
• Citation: 68 N.W. 45,65 Minn. 355
• Parties: BARG v BOUSFIELD ET AL.
• Court: Minnesota Supreme Court

65 Minn. 355

68 N.W. 45

BARGvBOUSFIELD ET AL.¹

Supreme Court of Minnesota.

June 30, 1896.

(Syllabus by the Court.)

1. Rule applied that a youth between 15 and 16 years of age is required to exercise the amount of discretion which a person of his age and experience should exercise, and no more, and whether plaintiff was guilty of contributory negligence held to be a question for the jury.

2. Whether or not his employer was guilty of negligence in failing to instruct such youth, and warn him of the dangers of working around machinery with which he was not familiar, held a question for the jury.

3. Rule applied that, where one who performs work for another represents the will of that other, not only as to the result, but also as to the means by which that result is accomplished, he is not an independent contractor, but the agent of that other, who is responsible for his acts and omissions within the scope of his authority.

4. Plaintiff was employed in defendants' establishment by one Scott, was injured by the latter's negligence, and brought this action to recover damages for the injury, claiming that he was defendants' servant, and Scott was their agent. They denied this, and claimed that Scott was an independent contractor, and plaintiff was in his employ. On the trial, the court received evidence showing that defendants held an indemnity policy, indemnifying them, and holding them harmless “to a certain extent” from liability “by reason of any injury to any employés, including this plaintiff or anybody else that might be in any part of the mill working in the factory,” and that the company issuing the policy had undertaken to defend, and was defending, this action for defendants. Nothing further appeared as to the contents of the policy, and it did not appear that such insurer undertook, by the policy, to defend the defendants in all cases in which they might be charged with any such liability. Held, the evidence was admissible, as tending to show that the defendants did not regard Scott as an independent contractor.

5. Other unimportant rulings considered and disposed of.

6. Held the verdict as it now stands is not so excessive that this court would be justified in granting a new trial.

Appeal from district court, Hennepin county; Robert Jamison, Judge.

Action by John Albert Barg, a minor, by Theresia Barg, his guardian ad litem, against E. F. Bousfield and others. There was a verdict for plaintiff, and from an order denying a new trial defendants appeal. Affirmed.

Keith, Evans, Thompson & Fairchild, for appellants.

F. D. Larrabee, for respondent.

CANTY, J.

This is an action for personal injury. Plaintiff had a verdict, and from an order denying a new trial defendants appeal.

The defendants are engaged in the business of manufacturing wooden tubs, pails, and other wooden ware. On June 16, 1894, plaintiff, then an infant between 15 and 16 years of age, was employed in their establishment by one Scott, who had charge of one department of the business, and who put plaintiff to work carrying wooden bottoms from the car over to one of the saws. Under one of the saws was placed a tub to catch the splints, scraps, and sawdust which fell from the saw. When the tub was full, Scott ordered plaintiff to take it away from under the saw. In attempting to do so, he put his right hand between the pile of refuse in the tub and the under side of the rapidly revolving saw, when his little finger, the next one, and the middle finger below the middle joint were cut off by the saw. Plaintiff claims that he had never worked around machinery before, did not know or appreciate the danger of doing so, and was not instructed or warned as to these dangers. He claims that Scott was negligent in failing to inquire as to his knowledge of these dangers, and in failing to instruct him as to the same, and that defendants are liable for Scott's negligence. On the trial, plaintiff testified that there was, or appeared to be, about five inches of space between the pile of refuse and the saw. “Q. How far from the splints up to the saw? A. About five inches. *** How did you happen to get your hand cut, and what were you doing? A. I was going to squeeze the splints, and the saw came down further than it appeared to come.”

1. We cannot hold, as a question of law, that he was guilty of contributory negligence. It may well be that a boy of his age, who had never worked around such saws, and was not familiar with them, would fail to realize that the teeth of a rapidly revolving saw are invisible, and would fail to learn that there was any danger in putting his hand where he could see nothing to interfere with it. He had worked in the factory only about one hour after he was hired until he was injured. The law did not require him to exercise the care and discretion that a person of mature years should. It required him to exercise such care and discretion as a boy of his age and experience should exercise, and no more. Woods, Mast. & Serv. (2d Ed.) 723. Whether he exercised this amount of care and discretion was, on the evidence, a question for the jury.

2. We are also of the opinion that it was a question for the jury whether or not Scott was guilty of negligence in failing to instruct the boy, and warn him of the dangers before sending him to empty the tub. Kaillen v. Bedding Co., 46 Minn. 187, 48 N. W. 779.

3. The next question in the case is whether the jury were justified in finding, from the evidence, that Scott was the agent or servant of defendants, so that they are responsible for his negligence. It appears by the uncontradicted evidence that Scott took the work of which he had charge by the piece. Defendants paid him a fixed price for a specified amount of work, and he hired the other employés under him, paid them himself, and retained the profits or suffered the losses which were the difference between the fixed contract price which he received and the amount of wages which he paid. He carried on his operations in one room of defendants' factory. They furnished the machinery, the power, and the material, and there is ample evidence to sustain a finding that they reserved and exercised complete control over the manner of performing the work. The defendants are partners, and each personally superintended, more or less, the work in or about the factory. For a part of this work they employed the laborers themselves, and they let other portions of the work to different parties, on similar terms to those on which they let the part that was let to Scott.

The defendant Bousfield was called for cross-examination, and testified as follows: “Q. And Mr. McVoy is the superintendent? A. Yes, sir. Q. And in all departments it is done subject to his approval, and he has a right to order it to be done a certain way, has he not, or not to be done a certain way? A. In a general way, yes. Q. It is all done subject to him? A. He has general supervision of the whole business. Q. And this man Scott was under him? A. Yes. Q. And had to do the work subject to his approval? A. Yes, sir. Q. And he had authority to stop Scott, and make him do it in a different way, didn't he? A. Yes. Q. And make him do it as he wanted it done? A. Yes, sir. Q. Now, what department was under Scott? A. What we call the bottom and cover department. *** Q. You said that all the work done by Scott and those under him is all done subject to the approval of the superintendent, McVoy? A. I say all that Mr. Scott does is subject to the approval of Mr. McVoy. Q. All that is done by Scott individually and those working under him? A. Yes. Q. And McVoy has authority at all times to superintend the work, has he not, *** and all portions of it? A. He has. Q. And has a right to direct when things shall be done? A. He has; yes, sir. Q. When they shall be done, and how they shall be done? A. ...