Forquer v. Slater Brick Co.
Decision Date | 24 October 1908 |
Citation | 97 P. 843,37 Mont. 426 |
Parties | FORQUER v. SLATER BRICK CO. |
Court | Montana 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.
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: 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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