Error
to circuit court, Cuyahoga county.
The
plaintiff below, John Corrigan, an infant under the age of 14
years, by his guardian, Thomas Corrigan, commenced his action
in the court of common pleas of Cuyahoga county against the
Cleveland Rolling-Mill Company, to recover damages for a
personal injury which he suffered while employed by the
company in its mills, and which, he charges, was caused by
the company's negligence. His petition, after stating the
appointment, the incorporation of the defendant, and that in
his employment he was placed by the defendant under the
control and direction of its foreman, alleges that he was
‘ by the defendant, through its said foreman
negligently and carelessly placed in a very dangerous and
hazardous place and position, and then and there by the
defendant, as aforesaid, carelessly and negligently ordered
and directed to engage in a very hazardous undertaking and
business; that is to say, the plaintiff was so, as aforesaid
ordered, put, and placed by the defendant, as aforesaid
carelessly and negligently, as aforesaid, at defendant's
rolling-mill aforesaid, in a narrow and limited space, in
dangerous and hazardous proximity to dangerous moving and
complicated machinery, revolving wheels, and shafts, on one
of which shafts a long loose belt was by the defendant
carelessly and negligently suffered and allowed to be
become, and continue hanging and swinging in irregular motion
and movements, effected by the revolution and revolving
motion of the said shaft on which it was so hanging, and by
the defendant aforesaid, through its said foreman aforesaid
carelessly and negligently, as aforesaid, plaintiff was
ordered, required, and directed to then and there turn the
steam of one of the said steamengines of the defendant on and
off, so as to start, stop, and regulate the motion of the
same; in order to do which, plaintiff had to reach up above
his head to turn the stop-valve or faucet there being, and so
effect the purpose aforesaid, under and in obedience to said
orders and directions. And plaintiff says that in so doing,
and in order thereto, it became and was necessary for him to
stand in dangerous proximity to said revolving shaft, on
which said belt was so hanging and moving as aforesaid, and
in dangerous proximity to the said belt; so that said place,
business, situation, and circumstances then and there
attending the execution of said order and direction so given
and made as aforesaid, as well as the execution thereof, were
extremely dangerous and hazardous to him, (the plaintiff; )
the defendant well knowing and being in duty bound to know
the same; while the plaintiff, by reason of his extreme
youth, tender years, and inexperience, had not the
opportunity nor capacity to inspect the situation, nor in any
degree to apprehend, understand, or comprehend the premises,
danger, or dangerous nature of the situation aforesaid, and
was ignorant thereof, which the defendant well knew, and was
in duty bound to know. And while the plaintiff was executing
said order and direction given as aforesaid by the defendant
aforesaid, and in obedience thereto, (the defendant having
carelessly and negligently neglected to advise or caution the
plaintiff in the premises, or any part thereof,) and while
the attention of the plaintiff was so necessarily engaged in
his said business, acting in obedience to said order and
direction, and without any fault on his part, but by and
through the negligence of the defendant aforesaid, and by
reason thereof, the left foot, limb, and leg of the plaintiff
were unavoidably caught in said belt, and thereby turned to
and brought against said revolving shaft last named, and run
over and turned around the same, under and by said belt and
revolving shaft, and so the bones and flesh thereof crushed,
mangled, and borken many times from his foot to his knee, and
the plaintiff shocked, strained, and injured in his body and
limbs, so that the plaintiff became and was by reason thereof
a long time sick, sore, lame, and diseased, his said limb
necessarily had to be and was amputated, the plaintiff
permanently injured and crippled for life, put to great
suffering and anguish, was compelled to suffer and has
suffered the expense of _____ dollars in trying to cure
himself, and is otherwise injured in the sum of ten thousand
dollars.’
The
answer admits that the plaintiff was by the defendant placed
under the control of its foreman, by whom the plaintiff
‘ was directed to attend to the turning on and off of
the steam at a steam-engine of the defendant's, so as to
start and stop it, in order to do which he had to reach up to
turn the stopvalve or faucet, and that he was so engaged on
the day of receiving said injury; that in performance of said
duty it was necessary for him to stand near a shaft of said
engine, which revolved when the engine was in motion, and at
the time the injury occurred a short small belt was hanging
loose upon said shaft; that his leg was crushed by said shaft
so that it had to be amputated.’ The answer denies the
other allegations of the petition, and avers that ‘ the
injury to John Corrigan occurred solely through his own fault
and negligence, and without any fault, negligence, or want of
due care on defendant's part.’
The
cause was tried to a jury, and the only exceptions taken in
the progress of the case, as disclosed by the record, appears
therein as follows: ‘ And the jury thereupon (on
December 15, 1886) retired, and afterwards (on December 17,
1886) came into court and stated that they had not agreed,
and requested further instructions from the court, and made
their request in writing, as follows: ‘ If we find that
the defendant did not use that care, caution, and judgment
that their relations to the plaintiff required in placing the
plaintiff in a position that resulted in his injury, and that
the boy contributed thereto ignorantly, then can we find for
the plaintiff? The Court . I will say to you upon
this subject, gentlemen, it was the duty of the plaintiff to
use ordinary care and prudence,-just such care and prudence
as a boy of his age, of ordinary care and prudence, would use
under like or similar circumstances. You should take into
consideration his age, the judgment and knowledge he
possessed. If not understanding all the dangers and hazards
of the situation in which he was placed by the foreman, and
you find it was a dangerous and hazardous situation in which
to place a boy of his age, judgment, and experience, it was
the duty of the foreman to instruct him in respect thereto,
that he might conduct himself so as to guard against such
peril; and if he was injured by reason of the neglect or
carelessness of the defendant, and John Corrigan, by reason
of his youth and want of judgment as to the perils of the
position, did some act in the discharge of his duty as he
understood it, which also contributed to the injury, and
which he did not know to be likely to injure him, and had not
been properly advised and instructed thereto by the foreman,
he is entitled to recover.’ And thereupon the defendant
execpted to the charge as given to the jury on the occasion
of their return into court, asking further instructions as
aforesaid. And thereupon the jury retired, and afterwards
returned a verdict for the plaintiff, and assessed his
damages at $5,000. And thereupon the defendant filed its
motion for a new trial of this cause; which motion the court,
on consideration, overruled; to which overruling of said
motion defendant thereupon excepted.' Judgment having
been rendered on the verdict, and affirmed by the circuit
court, the rolling-mill company filed its petition in error
in this court to reverse both judgments.
In the
application of the doctrine of contributory negligence to
children, in actions by them, or in their behalf, for
injuries occasioned by the negligence of others, their
conduct should not be judged by the same rule which governs
that of adults; and while it is their duty to exercise
ordinary care to avoid injuries, ordinary care for them is
that degree of care which children of the same age, of
ordinary care and prudence, are accustomed to exercise under
similar circumstances.
In the
application of the doctrine of contributory negligence to
children, in actions by them, or in their behalf, for
injuries occasioned by the negligence of others, their
conduct should not be judged by the same rule which governs
that of adults: and, while it is their duty to exercise
ordinary care to avoid the injuries of which they complain,
ordinary care for them is that degree of care which children
of the same age, of ordinary care and prudence, are
accustomed to exercise under similar
circumstances.[1]
Persons
who employ children to work with or about dangerous
machinery, or in dangerous places, should anticipate that
they will exercise only such judgment, discretion, and care
as is usual among children of the same age, under similar
circumstances; and are bound to use due care, having regard
to their age and inexperience, to protect them from dangers
incident to the situation in which they are placed; and as a
reasonable precaution, in the exercise of such care in that
behalf, it is the duty of the employer to so instruct such
employes concerning the dangers connected with their
employment, which, from their youth and inexperience, they
may not appreciate or comprehend, that they may, by the
exercise of such care as ought reasonably to be expected of
them, guard against and avoid injuries arising therefrom.
Such
employe who has not been so instructed, and who, while in the
discharge of his duty as he understands it, suffers an...
