Fitzgerald v. Alma Furniture 00

• Decision Date: 20 December 1902
• Citation: 131 N.C. 636,42 S.E. 946
• Parties: FITZGERALD. v. ALMA FURNITURE 00.
• Court: North Carolina Supreme Court

42 S.E. 946

131 N.C. 636

FITZGERALD.

v.ALMA FURNITURE 00.

Supreme Court of North Carolina.

Dec. 20, 1902.

MASTER AND SERVANT—EMPLOYMENT OF INFANTS—INJURY TO SERVANT—FAILURE TO WARN—CONTRIBUTORY NEGLIGENCE — EVIDENCE — INSTRUCTIONS — QUESTION FOR JURY.

1. In an action by a boy nine years of age for injuries sustained in a factory, an instruction that if plaintiff only had the intelligence of an ordinary boy of his age, and had never seen a machine like the one he was assisting to operate until the day he was injured, and did not have capacity to understand the dangerous parts of the machine, and, because of his youth and inexperience, while waiting for the man operating it he threw his arm on the machine to rest himself, and defendant's agent who employed him failed to warn him against danger, the jury should consider such facts in passing on the question whether plaintiff was guilty of contributory negligence, was proper.

2. In the absence of an appeal by the plaintiff, whether instructions were too favorable to the defendant will not be reviewed.

3. In an action by a boy nine years of age to recover for injuries sustained in a factory, it was not error to permit the father to testify that he did not hire plaintiff to defendant.

4. Where a boy nine years of age was employed to work in a factory without his parents' consent, and the foreman directed him to assist in operating a machine, without instructing him as to the dangers incident thereto, and his arm was caught between the rolls of the machine and crushed, in a manner not disclosed, the question of defendant's negligence was for the jury.

Furches, C. J., and Montgomery, J., dissenting.

Appeal from superior court, Davidson county; T. J. Shaw, Judge.

Action by William Fitzgerald, by his next friend, against the Alma Furniture Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

King & Kimball, for appellant.

Watson, Buxton & Watson, for appellee.

CLARK, J. The plaintiff, who sues by his next friend, testified: That when nine years old, one day when his father was absent from home (and he did not return until after the little boy was injured), he went to the factory of the defendant to get work. The foreman offered him 25 cents a day, and put him to work "tailing a molder" and pulling sawdust to the furnace. The next day he tailed the planer, and the next day, about 1 o'clock, he was put to work on the sander, which is a machine with rollers, and sandpaper on the rollers, run by belts. That when he went to work at it a man was running the machine, and stood at its front end, and he was at the back end. The man told him to take the planks as they came out of the machine. He worked there an hour and a half before he got hurt. The planks were 1 foot wide, 1 1/2 feet long, and about an inch thick. He had never worked in a factory before, and had never seen a sander. He further said: That the man in charge of the machine left to go after planks, but did not stop the machine. While the man was gone, he leaned up against the machine and laid his hand on it was caught, and his hand was mashed. He "hollered, " and some one came and raised up the machine. His hand was mashed between the rollers. He had hired himself for three weeks, and told the foreman he was a schoolboy. On cross-examination he said he was then four feet high. He was not instructed about the machine. He did not climb up on the machine, and does not know how his hand touched the wheel. Does not know where he put his hand, but did not think it was where the lumber came out. He knew it would hurt to put his hands on the moving wheels. Says he would not have been hurt if he had stood off from the machine. Did not remember what he leaned against the machine for. Just never thought of himself, he reckons, and leaned up against it. His hand could not get in there unless he put it in there. It was a pretty dangerous place where he was working. The sandpaper on the rollers was going round as fast as it could. Does not think he put his hand in. But it could not have got in unless he put it in. One roller ran one way, and one the other. Was standing on his feet when he got hurt. Did not get off the floor. The plaintiff's father testified: That he lived on a farm in the country. That he did not hire his son to the defendant, and knew nothing about it. When he got back home his boy was in the bed, with his arm dressed. An abscess rose on it. The doctor came to see the boy every day for ten days, and he was in bed for two months, and has suffered greatly. Another witness testified, who thought that if the boy was only four feet high he must have climbed upon the machine and stuck his hand in; that there was no danger from leaning against the machine, and it had an iron casting all around it, and there was no danger about the machine unless you put your hand in. This, in substance, is the evidence. The defendant did not offer any evidence, but moved to dismiss upon the evidence of the plaintiff. During the discussion of the evidence his honor remarked to the plaintiff's counsel that he had not made out a case, unless it was negligent in the defendant to employ the plaintiff at all, to which there is no exception, and submitted the question, upon all the evidence and attendant circumstances, to the jury, who found that the defendant was negligent, and the plaintiff was not guilty of contributory negligence.

The court charged the jury at the request of the plaintiff: "If the jury find from the evidence that the plaintiff at the time of the injury was a boy nine years and five months of age; that he only had the intelligence of ordinary boys of his age; that he had never seen a machine like the one he was helping to operate until one o'clock of the day hewas Injured; that he did not have the capacity to understand the mechanism of the machine or its dangerous parts; that because of his want of age and experience, and while waiting for the man operating, he threw his arm upon the machine to rest himself, and for the further reason that the defendant's agent who employed him had failed to warn him against danger, —then it will be the duty of the jury to consider these matters in passing upon the question as to whether the plaintiff was guilty of such negligence as the law terms 'contributory negligence, ' which would justify the jury in finding the second issue 'Yes.'" The defendant excepted to this, but we find no error. This hypothetical summary was a state of facts which "the jury would be Justified in finding from the evidence, and it could not be error in telling the Jury they should consider that state of facts, if they found them to be facts, in passing upon the second issue. To none of the other instructions, nor to any part of them, did the defendant except. Whether they were not too favorable, in some particulars, to the defendant, is not before us, as the plaintiff is not appealing.

The court gave certain charges at the request of the defendant. The other prayers for instructions were properly refused.

Nor was it error to permit the father to testify that he did not hire his son to the defendant. The complaint alleged that it was negligence to employ a boy of the plaintiff's tender years, lacking in capacity to understand and appreciate the dangers incident to his employment, and unfit, by reason of his youth and inexperience, as the defendant well knew, to be set at such work without instructing or cautioning him, though he was wholly ignorant of the dangerous character of the same. There was evidence strongly tending to prove that state of facts, and the real point in the case is raised by the motion to dismiss, i. e., whether the facts, the youth of the child, his inexperience, his ignorance of the nature and dangers of the work, and the failure to instruct him, made it negligence to employ him. The reason of the thing, and all the best authorities, sustain that it was not error, of which the defendant could complain to submit this evidence to the jury. Judge Cooley, in his work on Torts (page 652), says: "The master may also be guilty of actionable negligence in exposing persons to perils in his service, which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in the employment of infants. * * * The duty of the employer to take special cautions in such cases has sometimes been emphatically asserted by the courts." "The law, " says Thomp. Neg. 978, "puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all. The master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance, and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult." These be wise and just words, and were so esteemed by the supreme court of Ohio, which cited with approval both the above extracts in Rolling Mill Co. v. Corrigan, 46 Ohio St. 283, 20 N. E. 466, 15 Am. St. Rep. 596. Further, citing like authorities from the decisions of sister states, that court further held that an infant employe, whose employer has not instructed him, as it was his duty to do, and who, while in the discharge of his employment, suffers an injury by reason of such neglect, may maintain an action therefor notwithstanding he did, by reason of his youth and ignorance, some act which contributed to his injury, but which he was not advised would be likely to injure him. To same purport, cases cited in the notes to that case (15 Am. St. Rep. 603), and Smith v. Irwin, 51 N. J. Law. 507, 18 Atl. 852, 14 Am. St. Rep. 699, and notes. In Tagg v. McGeorge, 155...