Comer v. Ritter Lumber Co

• Decision Date: 24 April 1906
• Parties: COMER. v. RITTER LUMBER CO.
• Court: West Virginia Supreme Court

53 S.E. 906

59 W. Va. 688

COMER.

v.RITTER LUMBER CO.

Supreme Court of Appeals of West Virginia.

April 24, 1906.

1. Appeal—Objections Waived.

One who resists a motion made by a party introducing improper evidence to exclude it from the jury cannot complain, on appeal, of its introduction.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3597.]

2. Damages—Injuries to Infant.

An infant cannot recover damages for loss of service during minority arising from personal injury.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Action by Arthur G. Comer, who sued by his next friend, against the Ritter Lumber Co. Judgment for plaintiff. Defendant brings error. Reversed.

J. J. Divine and Rucker, Anderson & Hughes, for plaintiff in error.

E. C. Marshall, for defendant in error.

BRANNON, J. Arthur G. Comer, a boy between 13 and 14 years of age, while in the employ of W. M. Ritter Lumber Company, at a sawmill, was injured by a fragment of the cylinder head of a steam sawmill striking his foot, so injuring three of the toes that a part of his foot had to be amputated. The claim of the plaintiff for recovery is that the piston rod which carried the log carriage to and fro, owing to a loose bracket, was in bad condition, which caused it to break and drive out the head of the cylinder, breaking it into fragments, which were scattered around by the force of the steam, one piece striking Comer. It is also alleged that there should have been a barrier to protect the workmen against injury from the blowing out of the cylinder head. Comer, by bis father and next friend, brought an action against the company and recovered $1,200 damages by verdict and judgment, and the company brings the case to this court.

One question in the case is this. The plaintiff gave evidence over objection to prove that the company had not given instruction to Comer for his safety under the law which requires such instruction in the case of an infant employe. After this evidence was given the plaintiff moved the court to exclude the question and the answer, but the defendant objected to their exclusion. We are of the opinion that this point is untenable. "The appellant must be consistent, and if he asks the court below to make a specific ruling, or to proceed in a certain manner, he cannot complain in an appellatecourt that the ruling or action is erroneous. He has invited the error and must accept its results, and the appellate court will not reverse a judgment at his instance on account of it." 2 Ency. P1. & Prac. 519.

Another point is that several witnesses were allowed to express their opinions to the effect that the operation of that mill or cylinder head, piston rod and bracket was dangerous without protection, meaning some barrier erected to prevent the cylinder head, in case of its blowing out, from flying out and injuring the workmen. The point of this objection is that this was a subject upon which mere opinion evidence could not be given, but was provable by evidence of facts. In response to this it may be said that the construction and operation of machinery involves technical matters. The witnesses giving this evidence were experienced in the construction and operation of mills, had helped to construct them and operate them, had helped construct this one, and knew much of this mill from personal experience. We think their evidence was admissible. They also stated facts in connection with their opinions touching this mill.

Another point of objection is that it was incumbent on the plaintiff to prove that the injury was due to the defective condition of the steam feed as a matter of fact, and that the defendant knew or could have known such defect, by reasonable care, and did not provide a safe place for its employes to work in. This is clearly the duty of the plaintiff. He must show negligence in this respect. He must show that the plaintiff's injury proceeded from failure and neglect of duty imposed by law upon the defendant. He must show that the mill machinery was defective and dangerous. Whether he has done so, we do not say. That is left for the decision of a jury upon a new trial. Whether the plaintiff was where he should not have been is a question for the jury.

Defendant complains of an instruction given by the court that, "the plaintiff in his action is entitled to...