Darsam v. Kohlmann

• Decision Date: 15 February 1909
• Docket Number: 17,047
• Court: Louisiana Supreme Court
• Parties: DARSAM et ux. v. KOHLMANN

48 So. 781

123 La. 164

DARSAM et ux. v. KOHLMANN

No. 17,047

Supreme Court of Louisiana

February 15, 1909

Rehearing Denied March 15, 1909.

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

Action by Frank Darsam and wife against Louis Kohlmann. Judgment for defendant, and plaintiffs appeal. Affirmed.

Armand Romain (George Montgomery, of counsel), for appellants.

Charles Rosen, for appellee.

OPINION

MONROE J.

Statement of the Case.

Plaintiffs seek to recover damages for the use of their minor son, and on their own account, resulting from an injury sustained by the minor whilst in the defendant's employ, and, as they allege, through defendant's negligence and disregard of the law. Defendant, after excepting on several grounds denies the averments of the petition, and alleges that the injury sustained by the minor was due to his own negligent act. It appears from the evidence that at the time of the accident that caused the injury complained of (August 15, 1907) the minor was about 11 years and 1 month old, but large for his age, wearing the clothing usually worn by boys of 15, and fairly intelligent. He lives, with his parents, on Clouet street, between Chartres and Royal, and on the opposite side of the street defendant operated, and for a number of years has operated, a moss factory, in which the minor's two elder brothers (one of them a major) were, or had been, employed. The minor, Clarence, was enjoying a vacation from school during the month of August, and being, as we infer from the testimony, an active lad, made repeated requests of the foreman of the moss factory to give him work, stating on one occasion, in the presence of his brother George, that he was 15 years of age, and, on being corrected by George, asserting, without further correction, that he was 14, which latter statement he made on another occasion in the presence of a number of the employes of the factory. Defendant appears to have known the law upon the subject of the employment of minors, and had a further interest in the matter, in that he was insured against accidents to his employes by a policy which did not cover an accident to a minor under 12 years of age, and he had specifically instructed his foreman to employ no small boys. He had another business, however, and spent very little time at the moss factory, the operatives in which were employed and discharged by the foreman, and he knew nothing of the employment or age of Clarence Darsam. The foreman apparently thought that the age limit with regard to the employment of minors in factories was 14 years, and the evidence satisfies us that, if he had not believed that plaintiff's son had attained that age, he would not have employed him. As it was, the boy was persistent and seemed anxious to earn something, and on two successive Saturdays the foreman employed him in moving dust in the yard with a wheelbarrow. On one of these occasions the father, in passing, inquired what he was doing, and, being told, said he did not think he could stand the dust. He says that he told the foreman that he did not want the boy to work about the factory, but the foreman denies it, and testifies, without contradiction, that the boy's lunch was sent to him from home -- referring as we understand, to the subsequent period of employment, between August 10th and August 15th -- and we hardly think that would have happened without the knowledge of his parents, nor do we find any sufficient reason for believing that the foreman would have employed him against his father's expressed wish. When he applied, on August 10th, he was assigned to about as light and as safe work as is done in the factory. The moss, it appears, is brought into the upper story of the building upon an automatic carrier, consisting of what may be called a belt of slats, which passes up an inclined plane, over and around a wheel raised some five feet above the floor, and, in so doing, deposits the moss on the floor in front of the wheel. The incline up which the carrier moves is built alongside of and about 16 inches from the wall of the building, and the power which drives the apparatus is communicated to the carrier wheel through a driving wheel and two cogwheels, geared together in the space between the end of the carrier wheel and the wall, the driving wheel getting its power from a steam engine, through a rope, and having a grooved or hollowed periphery in which the rope works. The driving wheel, which is nearest the wall, is 26 inches in diameter, and on the same axle is a cogwheel, 4 1/2 inches in diameter, on which is geared (on the further side from the front of the carrier wheel) the other cogwheel, 30 inches in diameter. In order to prevent the moss and dirt brought up on the carrier from falling into the cogs, and possibly by way of precaution against accidents, defendant caused to be built a wooden partition separating the driving wheel and cogwheels from the carrier and from the end of the carrier wheel, and projecting to the front edgewise, so that a person standing immediately before the carrier wheel would be safe from contact with the others. And it was to that position that Clarence Darsam was assigned; it being his duty to take up with a pitchfork the moss as the carrier brought it over the wheel and dropped it on the floor, and to distribute it among a number of girls and women who were standing within a few feet of him, and whose function it was to take the moss in their hands and shake it apart.

Being asked by plaintiff's counsel:

"Clarence, how did you get hurt on that day? How did you come to get hurt?" he replied: "Well, I was standing this way, and when I wanted to throw the moss, it all happened so quick that I didn't know what had hold of me, and when I hollered, Mr. Monroe [the foreman] came there with a crowbar and stopped the machine, and took my hand out and throwed the wheel up. * * * Q. What was it that caught your hand? A. Well, I don't know exactly what it was, whether it was the flywheel or the cogwheel. Q. And when Mr. Monroe came and took your hand out, where was your hand? A. It was in the cogwheels. * * * Q. Clarence, what made your hand get caught between the cogwheels? A. It was my sleeve. Q. Did you have your coat on at the time? A. No, sir, no coat. Q. Well, what did you have on? A. I had on a red shirt, and the sleeve was a big sleeve, and it caught."

On his cross-examination, his attention was called to the fact that the cogs lie back some 15 1/4 inches, in the narrow space between the driving wheel and the end of the carrier wheel, and that the rope on the driving wheel lies imbedded in its grooved periphery, and he could give no explanation further than to say that he had a button on his shirt sleeve, and that it might have been caught between the driving wheel and the rope, as the latter was loose. Being asked whether he knew that the button was caught, he replied that he did not; the sum and substance of his testimony being that he knew nothing about the accident, save that he found his hand between the cogwheels, where (it may be here stated) it was very badly mangled, necessitating the loss of the thumb, with the first and second fingers and part of the palm. He was taken to the hospital, and two of the young women who were working with him at the time called on him, about a week later, and they testify as follows:

Miss Louise Macke:

"I asked him how did he get his hand hurt, and he said he put his hand there, and he never thought he was going to get his hand hurt."

Mrs. Louise Schlusser:

"I asked him how he did that, and he said he put his hand behind there. Q. That he put his hand in where? A. In the cogwheels. Q. That is what Clarence told you? A. Yes, sir."

Being questioned in regard to the statements thus attributed to him, the minor admitted that the witnesses called on him and that he had a conversation with them, but, being asked, "Did you have any conversation at all with those young ladies as to how this accident happened?" he replied, "No, sir."

That the accident could not have happened as the boy says it did, or in any other way save by his deliberately meddling with the driving wheel or cogwheels, if the partition to which we have referred was in position, is made manifest by all the testimony, and the story told by the boy rests upon the premise that the partition was not in position. The carpenter who built the partition (in 1904) testified that, whilst he could not absolutely identify the boards, they appeared to be the same that he had used. Fourteen other witnesses testified, positively, that the partition was there on the day of the accident, and had been there, just as it was on that day, from the time it was built, or for a year or two years, as they happened to know the fact.

Plaintiff seems to have conceived the idea that three new planks of white pine were put in after the accident, and the photographer employed by him was probably impressed with his view of the matter, as he testified that, when he took his photographs (shortly after those for defendant had been taken), the three planks looked to him like pieces of dry goods cases. Defendant, however, called several witnesses who testified that the planks are of yellow pine, and, as it would have been easy matter to have shown that they were wrong, if such had been the case, we assume that plaintiffs who made no attempt to disprove their statements, concluded that they were right. Apart from that, the testimony adduced on behalf of plaintiffs to show that the partition was not in its place at the time of the accident is conflicting, and withal insufficient, both in volume and character, to overcome that adduced by defendant. We therefore conclude, as a matter...