Curtis & Gartside Co. v. Pigg
| Decision Date | 04 April 1913 |
| Parties | CURTIS & GARTSIDE CO. v. PIGG. |
| Court | Oklahoma Supreme Court |
On Rehearing, July 22, 1913.
Syllabus by the Court.
Under section 5933, Comp. Laws 1909, a party to an action may be given judgment on the pleadings, even after verdict has been rendered against such party; but in such case the right to such verdict should clearly appear from the status of the pleadings, and where plaintiff has stated a cause of action and issues are formed by answer and reply, and where the pleadings thereby present material issues of fact, which cannot be determined without evidence aliunde, it is not error to overrule the motion for judgment on the pleadings.
Under section 629, Comp. Laws 1909 (section 1, Child Labor Law), no child under the age of 14 years shall be employed or permitted or suffered to work in any factory, workshop, or at any occupation especially injurious to health or morals or hazardous to life or limb.
Under section 630 (section 2, Child Labor Law), children over 14 and under 16 years of age may be lawfully employed to do such work as is not dangerous or hazardous, in a room or building where dangerous machinery is being operated; but they shall not be employed nor permitted nor suffered to operate nor assist in operating any dangerous machinery, nor to oil nor assist in oiling any circular bandsaws while in motion.
The purpose of the child labor law is to positively prohibit children under the ages designated from being employed permitted, or suffered to engage in occupations that are injurious to health or morals or hazardous to life or limb and, in the general plan of prohibition, the terms "employed," "permitted," and "suffered," are each given a distinct office, with the full meaning and significance given such terms in common usage, and mean that children shall neither be employed by contract, nor permitted by acquiescence, nor suffered by a failure to hinder.
Where a minor over 14 and under 16 years of age is employed to do such work as the law authorizes his being employed to do, in a room where circular bandsaws and dangerous machinery are being operated it is negligence for which the master is liable for the injuries resulting, for a vice principal to direct or negligently permit or suffer such minor to oil or assist in oiling such machinery while in motion, although the contract of employment may be lawful.
Under a contract between his father and the vice principal of a sash and door factory, a boy 14 years of age is employed to sweep out and do such other things as the law permits his being employed to do in a factory where dangerous machinery is being operated. The boy knows nothing of the terms of the contract, nor what he is supposed to do or to be forbidden to do. He is placed by his father under the care and supervision of the vice principal. The vice principal gives him no instruction as to what he shall do or not do, gives him no warning as to the dangers of the machinery, and fails to admonish him not to assist in oiling or operating same, but turns him over to a foreman, without giving the foreman any instructions in reference to the boy, but leaves the matter of instructions altogether to the foreman. The foreman orders the boy to assist a man who is operating a system of bandsaws, and instructs him to do whatever the operator tells him to do. The operator tells him to oil the saws while in motion. In so doing his hand is cut off by a saw. In such case the master is liable for failure to exercise the degree of care required by statute.
(a) Although a single paragraph of a charge, standing alone, may not fully state the law, if in the entire charge, construed as a whole, the law is fairly and fully stated, the judgment will not be reversed.
(b) Where the material issues involved are stated in preceding paragraphs of the charge with such clearness as to enable the jury, without reference to the petition, to know what the material issues are and what issues are to be determined, a judgment will not be reversed merely because in a succeeding paragraph the court uses the language, "provided you find that plaintiff has established all the other material allegations of this petition."
Where a manufacturer assigns a boy under 16 years of age to the work of assisting in the operation of a machine, the principal factors of which are circular saws, such act constitutes a violation of the prohibitions of the child labor laws, and if the boy is injured at such work the manufacturer is liable.
Where liability is so clearly shown by the evidence of the defendant that the trial court would have been justified in instructing the jury to find the defendant liable, and this court has held, as a matter of law, that defendant is liable under its own evidence, and there is no error in the record save as to the amount of the damages recovered, this court has the power, in the interest of a speedy and economical administration of the law, to fix and establish plaintiff's right to recover and remand the case to the trial court for a reassessment of the damages, and for that purpose only.
Additional Syllabus by Editorial Staff.
Under Williams' Ann. Const. § 27, providing that "three-fourths of the whole number of jurors concurring shall have power to render a verdict," it is with the jury to say whether they will render a three-fourths verdict, and not for the court to peremptorily demand it.
Where, in a personal injury case, the instructions stated an improper measure of damages, and the verdict, though not necessarily excessive, was large, being an award of $10,000 for the loss of the right hand, the error was not harmless.
Commissioners' Opinion. Division No. 2. Error from Superior Court, Oklahoma County; R. N. Munden, Judge.
Action by Walter H. Pigg, by next friend, against the Curtis & Gartside Company. Judgment for plaintiff, and defendant brings error. Remanded on rehearing.
Flynn, Chambers, Lowe & Richardson and Everest, Smith & Campbell, all of Oklahoma City, for plaintiff in error.
Giddings & Giddings, of Oklahoma City, for defendant in error.
This suit was begun in August, 1909, by Walter H. Pigg, a minor 14 years of age, suing by and through his father, Joel L. Pigg, for damages sustained from personal injuries caused by the alleged negligence of defendant company. The petition alleged in substance: That defendant, Curtis & Gartside Company, was a manufacturing corporation engaged, among other things, in manufacturing doors and window sashes. That in cutting, shaping, and preparing such window sashes for sale they maintained and operated a system of machinery consisting in part of belts, pulleys, and circular bandsaws. That plaintiff, a minor 14 years of age, was engaged by his father to defendant to do certain work in and about defendant's plant, such work to consist of sweeping out, loading trucks, and occasionally using an ordinary handsaw, and with the understanding that, owing to his youth and inexperience, he should not be directed to operate or oil any of the dangerous machinery, or permitted to work about them so as to endanger his safety. That the contract of employment was verbally entered into between plaintiff's father and one Mattheison, superintendent of the manufacturing plant. That one Johnson was foreman on the floor on which plaintiff was employed to work. That plaintiff was under the direction and subject to the orders of said Johnson. That on the floor on which plaintiff was employed to work there was a system of bandsaws run by electricity and at a very high rate of speed, and used in cutting and shaping the products of said plant. That one Brooks was engaged in operating said system of saws, and that plaintiff was directed by Johnson, the foreman, to assist Brooks and do such things as Brooks directed him to do. That on the date of the injury plaintiff was assisting Brooks in taking the material from the saws in the capacity of off-bearer, and while thus engaged was directed by Brooks to oil the machinery while it was in motion, and while attempting to oil same one of the saws caught his hand and cut it off, thereby permanently injuring and disabling him, and damaging him to the amount of $20,000. That such injuries were the result of defendant's negligence in failing to cover said saws with proper guards, and in directing defendant, a youth under the age of 16, to oil said machinery while in motion.
Defendant answered, admitting its corporate existence, and the business in which it was engaged, and the dangerous character of the machinery used in operating same. It admitted the employment of plaintiff to do such things as by law it was permitted to employ him to do, but denied that plaintiff had been employed to assist in operating or oiling said dangerous machinery, or to do anything forbidden by law, and denied that plaintiff had, by any one in authority, been directed to oil said machinery, and that, if plaintiff had been directed to oil said machinery by Brooks, and in obedience to such orders had received the injuries complained of, such injuries were the negligent acts of a fellow servant, and not the acts of defendant, and that therefore defendant was not liable for the injuries received.
There were other motions and pleadings filed, but the cause was tried on the theory, on the part of plaintiff, that defendant was negligent in failing to maintain proper covers and guards over the saws, and in permitting and directing the plaintiff, in violation of statutes, to assist in the operation and oiling of the machinery; and defendant maintained that plaintiff's injuries, if received as alleged, were the acts of a fellow servant, and therefore the defendant was not liable.
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