Forquer v. North

• Decision Date: 06 December 1910
• Citation: 112 P. 439,42 Mont. 272
• Parties: FORQUER v. NORTH et al.
• Court: Montana Supreme Court

112 P. 439

42 Mont. 272

FORQUER v. NORTH et al.

Supreme Court of Montana

December 6, 1910

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Action by Claude Earl Forquer, a minor, by C. F. Forquer, his guardian ad litem, against Austin North and the Slater Brick Company. Judgment for plaintiff, and defendant brick company appeals. Affirmed on condition.

M. S Gunn and Fred H. Hathhorn, for appellant.

W. M Johnston, Wm. Wallace, Jr., and R. F. Gaines, for respondent.

SMITH J.

This is the second appeal in this case. See Forquer v. Slater Brick Co., 37 Mont. 426, 97 P. 843. The complaint has been amended and a retrial had, resulting in a verdict against both defendants in the sum of $10,000. From a judgment entered on the verdict and an order denying a new trial, they have appealed.

The amended complaint, after alleging the plaintiff's age, 13 years, continues as follows:

"(4) That among the duties of plaintiff's said employment he was required to throw said pug mill in and out of gear and to oil the same, and he was likewise directed by his said employers, and it was then and there a part of his duty, to take a certain hose used in connection with said machine and to turn water upon the clay which was being fed through the same and to feel of said clay as it was emerging from said machine to ascertain the degree of moisture therein.

"(5) That said pug mill was a complicated piece of machinery and at its mouth, where said clay emerged, there were two cutting knives revolving upon a cylinder or rod which in their revolution upward and at the top passed into a metal frame whose sides came very close to said knives, and because thereof there was danger of injury from said knives and frame in the operation aforesaid of watering and feeling of said clay as the same emerged from said mill.

"(6) That plaintiff was in fact wholly inexperienced in the use of said mill and was without experience in the use of any machinery and did not in fact know, and by reason of his youth and inexperience in the use of machinery could not have reasonably known, of the danger incident to feeling said clay with one hand and wetting the same with the water from the hose held in his other hand, and in the manner aforesaid, but that defendant either knew, or in the exercise of reasonable care ought to have known, of the said inexperience of plaintiff and his need of instruction as to said danger, and it then and there became and was the duty of defendants, and each of them, to use reasonable care to give this plaintiff such instruction in regard to the performance of said duties as would have enabled him to sense and avoid said dangers, but that this they negligently, carelessly, and wholly failed to do."

"(8) That on August 16, 1906, and while in the obedience of said direction of defendants, plaintiff was feeling of said clay as it emerged from said mill with his right hand and at the same time holding said hose in his left hand and therewith wetting the said clay, and while he was in ignorance of the danger connected with said operation, and so without instruction as to said danger by reason of the negligence of said defendants, and without any intention on the part of plaintiff so to do, his left hand then holding said hose was carried forward to and against one of said knives in its upward motion and carried upward and against said metal frame," in consequence whereof he was injured. There was no demurrer to the amended complaint, but at the commencement of the trial the objection was made that it did not state facts sufficient to constitute a cause of action.

1. This court held on the former appeal that the evidence was insufficient to warrant a finding that the defendant Slater Brick Company was negligent in failing to guard the knives or in furnishing a defective hose. We held, also, that in cases like this it is a question of fact for the jury to determine whether the plaintiff required warning instructions, and, if so, whether the defendant had reasonably fulfilled its duty in that regard. The amended complaint predicates negligence solely upon failure to warn of danger. Counsel for the appellants now urge: "The complaint does not state a cause of action, for the reason that it does not appear therefrom that the negligence charged was the cause of the injury. It is not alleged that the failure to instruct, which is the only negligence alleged, caused or had anything to do with the injury." There is in the complaint, however, an allegation that the plaintiff was "without instruction as to said danger by reason of the negligence of the defendants." This court in Pullen v. City of Butte, 38 Mont. 194, 99 P. 290, 21 L. R. A. (N. S.) 42, said: "In Smith v. Buttner, 90 Cal. 95, 27 P. 29, the court, in considering the question now before us, said: 'It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent.' In other words, if the doing of certain acts, under certain circumstances, constitutes negligence, it is sufficient after specifying the acts, to say that they were negligently done; or, if the failure to do certain acts constitutes negligence, then it is sufficient, after specifying the acts, to say that the defendant negligently failed to do them."

As was said by the court on the former appeal, and the remark may be applied to the allegations of the complaint as well as to the testimony: "The boy was obeying orders and it was for the jury to determine whether the defendant was chargeable with want of ordinary care in not apprehending that he would probably attempt to do both acts at the same time, and not instructing him accordingly." The complaint alleges that plaintiff was directed to use the hose; to turn water upon the clay and feel it as it emerged from the machine; that there was danger "in the operation aforesaid of watering and feeling said clay as the same emerged from the mill"; that the defendants knew of the need of instruction as to said danger, and it was their duty "to use reasonable care to give him such instructions in regard to the performance of said duties as would have enabled him to sense and avoid said dangers, but that this they negligently and carelessly wholly failed to do"; that at the time of his injury he was feeling the clay with his right hand and wetting it by means of the hose held in his left hand, whereupon "his left hand, then holding said hose," was carried forward against the knives. It will thus be seen that the case falls squarely within the rule laid down in Pullen v. City of Butte, supra. The complaint sets forth that the defendants were negligent in failing to do a a certain act, viz.: to warn him of the danger connected with the performance of his duties in the manner in which he was directed to perform them. They were in duty bound to use ordinary care to furnish him a reasonably safe place in which to work and reasonably safe appliances. It is true that the complaint does not point out the particular warning required or the particular danger to be apprehended; but in the absence of a special demurrer for uncertainty, we think it sufficient to state a cause of action in this regard. In the Pullen Case no negligent act or omission of any kind was pleaded. We think it fairly deducible from the complaint that plaintiff's left hand was carried forward by the appliance furnished him for watering the clay, to wit, a hose through which water was being forced under pressure, and that the instructions required were such as would have enabled him, if he heeded them, to avoid having his hand carried forward by the hose far enough to bring it in contact with the knives. The failure to give such instructions would furnish a proximate cause of the accident. We think it is also reasonably to be gathered from the allegations of the complaint that the defendants negligently failed to warn the plaintiff of the danger to be apprehended from the act of feeling the clay and watering it at the same time. An instruction as to the space to be maintained between the end of the nozzle and the clay might have assisted him in avoiding injury. It is constantly to be borne in mind that he was a boy with a boy's immature judgment, or lack of judgment. Perhaps the inquiry whether counsel, under the same circumstances, would have considered it necessary to warn his own boy in the manner we have suggested, will serve to illustrate the method of reasoning by which the jury may have arrived at the conclusion that ordinary care was not exercised in instructing this boy.

2. It is contended that the evidence is insufficient to sustain the verdict. The plaintiff testified as follows: "When I was hurt, I was throwing water on the clay and feeling whether it was moist enough or not. I was on my knees at the mouth of the machine, throwing water in. I was down about like this (indicating) with my hand up here with a piece of hose throwing water, and this hand catching the mud as it fell out, to see whether it was moist enough; down on my right knee here, with the left hand up on the machine, my right hand about a foot from the bottom of the tub, about center ways from the hole through which the clay came, about six inches from the opening at the end of the tub, I should judge. My left hand was about six inches from the knives toward myself, as I was leaning. I had the nozzle in my hand. It was made of brass. I could not say how long it was exactly; I should judge it would be about six or eight inches long. I was holding at the back end of the nozzle; I could not say how long before I was hurt. There was water coming from the hose...