Forquer v. Slater Brick Co.

Decision Date24 October 1908
Citation97 P. 843,37 Mont. 426
PartiesFORQUER v. SLATER BRICK CO.
CourtMontana Supreme Court

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

Action by Claud Earl Forquer, a minor, by C. F. Forquer, his guardian ad litem, against the Slater Brick Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harry A. Groves, Fred H. Hathhorn, and Walsh & Nolan, for appellant.

W. M Johnston, Wallace & Donnelly, J. G. Brown, and R. F. Gaines for respondent.

SMITH J.

This action was brought in the district court of Yellowstone county to recover damages for personal injuries suffered by the respondent, due, as it is claimed, to the negligence of the appellant.

Plaintiff alleges in his complaint, among other things, as follows "That on or about the 16th day of August, 1906, he was in the employ of defendant at a certain brickyard, in or near the city of Billings, and that the duties of his said employment were to throw in and out of gear, by means of a lever, a certain lugging machine used in the manufacture of brick in said yard, and to oil said machinery; that the plaintiff was at said time only 13 years of age, and was wholly unskilled in the use of machinery, and had been in the employ of defendant for a period of only 3 days; that while so engaged in said employment, and on or about said date, the said defendant, without explaining to said plaintiff the dangers to be apprehended from said machinery, carelessly and negligently directed this plaintiff to take a certain hose and turn water upon the clay that was being fed through said lugging machine, and to feel of the clay that was being turned out of said machine to ascertain as to the degree of moisture therein; that, in disregard of its duty, the said defendant had carelessly and negligently allowed certain revolving knives connected with said machinery to be and remain unboxed and unguarded in any manner whatsoever, and that said knives were located in that portion of said lugging machine where plaintiff was so negligently directed to use said hose and to feel of the clay so emerging from said machine, as aforesaid, and that, in further disregard of its said duty, defendant carelessly and negligently furnished for use in turning the water upon said clay, as aforesaid, a hose which was wholly defective and unfit for use, in that the appliance for controlling the size and force of the stream emerging from the nozzle thereof had become so weak as to slip and allow the full force of the water to suddenly issue from said nozzle, of all of which defects defendant well knew, or, in the exercise of due care, ought to have known; that in obedience to the direction of said defendant, and while in the exercise of due care on his part, and in ignorance of the danger connected with said machinery and of the defects in said appliances, none of which this plaintiff either knew of or appreciated, plaintiff took said hose in his left hand and turned the stream of water upon the clay in said machine, using his right hand at the same time to feel of the clay emerging from said machine; and that while so employed, and because of the said negligent arrangement of said knives and said defects in said hose, the plaintiff's left hand came against and upon the revolving knives of said machine so negligently left unguarded and unboxed, as aforesaid, in consequence whereof plaintiff's left hand was cut, torn, and mutilated and the bones thereof broken, and the usefulness of said hand was permanently destroyed." Defendant by its answer denied all of the material allegations of the complaint, except the one that plaintiff's hand was injured. It further alleged affirmatively that the plaintiff was a bright, intelligent, active boy fully capable of preserving his safety under the circumstances described in the complaint, and that the injuries then sustained by him were the direct consequence of his contributing fault and carelessness; that the conditions of said hose and lugging machine were obvious, and the dangers arising therefrom were apparent; that the plaintiff ought to have comprehended and did comprehend and appreciate, the conditions of said hose and lugging machine and the dangers arising therefrom; that the injuries received by plaintiff were the direct consequence of such conditions and dangers; and that the plaintiff assumed the risk of the injuries then received by him in the mode in which they occurred.

The plaintiff testified in his own behalf as follows: "I was 14 years of age the 14th of last December. Previous to coming to Billings, I had had no experience in connection with machinery. I went to Mr. North [a stockholder in the defendant company], and told him that I had heard he wanted a boy at the brickyard to throw the lugging machine in and out of gear, and I asked him if I could get the work to do myself, and he said he didn't know whether I was large enough or strong enough, but he said I could go down there and try it, and I could go to the yard the next morning if the foreman didn't get a boy, and he said he would notify the foreman. If he hadn't got one, for me to come down and try it, if I was strong enough. I went down the next morning, and the foreman showed me what I had to do. The machine consisted of a lugging machine and a set of cogwheels and the belts up above. I had never seen a machine of that kind before. The basin that the dirt fell in was a sort of a circular thing, something in shape like a bathtub. It had a square end at one end, and the other end was open, except the parts that went down for the blades to fasten on, for mixing the mud and force it out of the machine, where it emptied into the press. In this basin there were the knives that stirred the mud up. The foreman told me that my duty would be to throw the machine in and out of gear when he gave the order for the machine to be stopped, or when any accident happened or something went wrong with the machine; or whenever he told me to stop it I was to throw the machine out of gear, and a little before the machinery was started for three or four days I was to oil the machine and the cogwheels until they ran right at noontime. There was no warning given me, except to keep my hands out of the cogwheels at the back end of the machine, where I was not supposed to be only when I was oiling the machine. There was no warning given me as to the knives at that part of the machine where I was directed to turn the water onto the clay. The water that was turned in there ran through some pipes that were up in the building and then through the hose they turned the water on a certain force at the nozzle. When I was turning the water on the clay, and in determining its moisture as it was emerging from the press, I was down on my hands and knees at the mouth of the machine. I was down on my hands and knees with my hands in the clay to see how wet it was. I had my left hand on the nozzle. There were some boards running down this side to keep the dirt from falling on the platform, and I was to throw the water on the other side, and I had my left hand up there to feel of the clay, to see how wet it was, if there was moisture enough in it, with the nozzle in my hand. I went to work on the 13th and was injured on the 16th of August. I was told, in case the clay or dirt got too dry before falling into the press, I was to use the hose and wet the dirt as it fell out of the machine and see if I could get it moist. The hose with which the water was turned into the clay I began to use the day I went to work. The following day the force of the water shoved the nozzle out of the hose, and it fell into the press, and they had to stop the machinery to get the nozzle; and the next morning, the second day, the timekeeper got some bands and put them around the hose, and they did not have any more trouble with it from then until the day I got hurt. The water that came out of the hose was adjusted by turning the stem of the nozzle certain ways. At the time I was injured, I had the nozzle so adjusted that it would allow the required flow through the hose. I was holding the hose in my left hand over the edge of the board, throwing the water in and feeling with my other hand to see if the dirt was moist enough, and the force of the water. The nozzle suddenly opened, and the force of the water jerked the nozzle and my hand into the place where the blade went through and mashed the nozzle and hurt my hand. By saying the nozzle opened I mean it sprung open and let a stronger stream of water through the nozzle. It was my left hand that was injured. I was holding the hose in that hand, and the sudden flow of the water through the nozzle jerked my hand and arm into the machine, and crushed the nozzle through my hand over these knives. There was nothing over the knives at that time to protect and guard them. This happened when the flow of the water burst through the nozzle and jerked my hand over the blade, where the blade had to pass up, and, as it got there, the blade jerked my hand there and the blade got my hand and shoved it into the machine." Over the objection of defendant that the testimony was incompetent, the plaintiff was allowed to testify that two or three weeks after the accident he went back to the brickyard and a piece of strap iron had been placed over the blades at the end of the lugging machine to keep any one from getting their hands where the blade was. This testimony was afterward stricken out on motion of plaintiff's attorney, and the jury was told to disregard it. Before it was stricken out, however, the plaintiff testified that, if the same sort of a guard had been on the machine at the time of the accident, his hand would have gone against the outside of the fender, "and would...

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