Coons v. Pritchard

• Decision Date: 30 March 1915
• Citation: 69 Fla. 362,68 So. 225
• Parties: COONS et al. v. Florida Supreme Court
• Court: Florida Supreme Court

68 So. 225

69 Fla. 362

COONS et al. v. Florida Supreme Court

March 30, 1915

Error to circuit Court, Duval County; D. A. Simmons, Judge.

Action by Robert B. Pritchard, a minor, by his next friend, John T Pritchard, against James N. Coons and another, copartners doing business as the Vulcan Iron Works. Judgment for plaintiff, and defendants bring error. Reversed, new trial ordered, and rehearing denied.

Syllabus by the Court

SYLLABUS

A minor, whose employment requires him to handle dangerous or defective machinery, assumes the risk of all apparent dangers he is capable of comprehending and avoiding.

Where an employer places a minor at work with defective or dangerous machinery, the dangers and risks of which employment the minor does not appreciate, and through a fault or error of his own sustains an injury while working at such machinery, the employer is liable in damages therefor, if the fault of which the minor was guilty was such an act of commission or omission under the circumstances as the employer might reasonably have anticipated from a youth of the average intelligence.

A master should consider the age, mentality, and lack of experience and capacity of his infant employés and fully instruct them as to the dangers incident to the particular employment in which they are engaged.

A declaration which alleges that the operation of a machine by the plaintiff, a minor, required the use of a 'stick or similar instrument' to 'keep the belt on the wheel and make it lie flat thereon while rapidly turning,' and that the plaintiff used, when he was injured, a 'large wrench' for that purpose, but that he was only 15 years of age, and did not, by reason of his youth and inexperience appreciate the dangers of his employment, is not defective as showing contributory negligence on the part of the minor.

A shop rule which required the employés in a shop to report any disorder or disarrangement about the machinery, in order that the power might be shut off before any attempt is made to correct or remedy such defect, may be waived by the employer. And knowledge on the part of the foreman in charge of the shop of a defect in machinery and acquiescence by him in the use of the machinery in its defective condition is tantamount to a waiver by the employer of obedience to the rule.

Admissions on the part of an infant, who is plaintiff in an action to recover damages for injury to himself from the negligence of his employer, that tend to show the infant's knowledge of the dangers of his employment, are admissible, when there is an issue on the question of the infant's mental capacity to appreciate the dangers of his employment.

A minor 15 years of age, employed in a shop where dangerous machinery is used, is not conclusively presumed to be incapable of contributory negligence.

An admission on the part of a minor, who was injured while using a defective machine, that he 'knew he should not have attempted to shift the belt in the way he did,' is admissible as tending to show an appreciation by him at the time of the injury of the dangers incident to his occupation.

A motion to strike the testimony of a witness should be confined to the particular objectionable portions of the testimony, otherwise the motion will be considered as too general.

There can be no recovery upon a cause of action arising in tort that is variant in substance from that which is pleaded by the plaintiff.

A declaration in tort, which alleges that, in operating a machine, the 'belt did not lie properly on the wheel of said machine to operate same,' but would turn on edge and the 'operation of same in its defective condition required that the operator use a stick or some similar instrument to keep the belt on said wheel and make the same lie flat thereon while rapidly turning,' and that the plaintiff used a large wrench for that purpose, and was injured, is not supported by proof that the injury occurred while the plaintiff was pressing the 'wrench against the back side of the belt with my hand around the side,' in an effort to force the belt on the main pulley in order to operate the machine, that the injury occurred in an effort to shift the belt from one pulley to another.

A motion to strike the testimony of a witness upon the ground that the facts testified to are variant from the allegations of the declaration is well founded.

Objections to testimony that are general, specifying no particular ground of objection, will not be considered.

In an action for damages for personal injuries, it it proper to receive evidence from a surgeon or physician as to the possibility of an operation benefiting the plaintiff's injured arm, as tending to throw some light on the actual damage sustained.

Where in such an action, it appears that the injuries received were permanent, it is proper to receive in evidence mortality tables.

The matter of directing a view by the jury is one which is addressed to the discretion of the trial judge; and, where he denies a view, his ruling will not be reversed, in the absence of any showing that injury resulted to the party applying therefor.

The question of the ability of the plaintiff, a minor, to appreciate the danger and risks of his employment, is for the jury to determine from the age, experience, mental development, and conduct of the plaintiff, and the opinion of a fellow workman as to a minor's mental capacity for appreciating such dangers is improper.

COUNSEL Marks, Marks & Holt, of Jacksonville, for plaintiffs in error.

C. M. Cooper and Chas. p. & J. J. G. Cooper, of Jacksonville, for defendant in error.

OPINION

ELLIS J.

Robert B. Pritchard was a minor 15 years of age and was employed by the plaintiffs in error in their shops in Jacksonville. While operating an electric drill or machine, Pritchard was injured by having his left arm thrown into a belt, running from a revolving shaft overhead to a pulley connected with the machine or drill, which drew his arm between the belt and wheel, fracturing and breaking the bones immediately above and involving the elbow joint. By his next friend, John T. Pritchard, Robert Pritchard brought suit against the plaintiffs in error to recover damages for the personal injury.

The declaration contained three counts. The plaintiffs in error, hereafter called the defendants, demurred to the three counts of the declaration. After the filing of the demurrer, it was stipulated between the parties that an amended third count might be substituted and filed in the cause in place of the original third count, and that the demurrer to the original third count should stand and apply to the amended third count.

Upon the hearing on the demurrer, the court below sustained it as to the first count and overruled it as to the second and amended third counts. This order of the court constitutes the basis of the first assignment of error.

The second count of the declaration alleges: That the defendants were engaged in running and conducting the business of an iron works or shop under the name of Vulcan Iron Works, a certain building or workshop in Jacksonville. That the plaintiff was employed by defendants as a helper or assistant to the workmen in the shop. That he was a minor of the age of 15 years. That it became the duty of the plaintiff, as said employé of the defendants, to operate a certain machine or engine or electric drill, which was operated by a leather belt from a revolving shaft overhead to a pulley connected with the drill or machine. That said machine or electric drill on said date and previous thereto was defective and out of order, in that the same was so set up that it was unsteady and vibrated in a jerky manner when in operation, and the said belt was too slack and did not lie properly on the wheel of said machine to operate same, but would turn on edge, and could not be controlled by the belt shift, which was a part of said machine for throwing said belt on and off of said wheel. That the said minor on said date above mentioned, in course of his said duty, was operating said machine or drill, and the operation of same in its defective condition required that the operator use a stick or some similar instrument to keep the belt on said wheel and make the same lie flat thereon while rapidly turning. That said machine or drill had for a long time been defective and out of order as aforesaid, to the knowledge of the foreman of said minor in charge of said shop, and the said minor had been operating same from time to time each day with said stick or similar object, as above stated, with the knowledge of said foreman. That the said necessary manner of operating said drill or machine on account of its defective condition made its operation exceedingly dangerous. That on the said day above mentioned the said Robert B. Pritchard was operating said machine in accordance with his duty under said employment as aforesaid, and was using, for the purpose of controlling said belt on said wheel, as aforesaid, a large wrench, thereby avoiding touching said belt with his hands. That suddenly, without warning, the said wrench slipped, and his left arm was thrown into the belt and caught between the belt and the wheel, and greatly injured; the bones being fractured and broken as follows: A complete transverse fracture of the humerus immediately above and involving the elbow joint. That at the time of said injury the said Robert B. Pritchard, through the negligence of his employers, had not been informed by his employers of the exceedingly hazardous nature of the operating of said machine by reason by its said defective condition, and the said minor, by reason of his youth and inexperience, did not know and appreciate the great danger to be incurred in operating said...