Glucina v. F.H. Goss Brick Co.

• Decision Date: 01 June 1911
• Citation: 115 P. 843,63 Wash. 401
• Parties: GLUCINA v. F. H. GOSS BRICK CO.
• Court: Washington Supreme Court

115 P. 843

63 Wash. 401

GLUCINA v. F. H. GOSS BRICK CO.

Supreme Court of Washington

June 1, 1911

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Nick Glucina, by Mike Glucina, his guardian ad litem against the F. H. Goss Brick Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. S Blattner, Fogg & Fogg, and Hudson, Holt & Harmon, for appellant.

Govnor Teats, Hugo Metzler, Leo Teats, Ralph Teats, and Peter David, for respondent.

MOUNT J.

Action for personal injuries. The respondent, Nick Glucina, who was under the age of 14 years, was employed by the appellant in a brick factory. He was employed to operate a hoisting machine. This machine consisted of a large wheel, called a 'bull wheel,' to the axle of which a drum was attached. A cable was wound upon the drum and was used in drawing cars filled with clay from a pit, along an inclined track, to about the point of the hoist. The bull wheel was operated by means of a friction pulley, which revolved upon the outer rim of the wheel. This friction pulley was located on the right-hand side of the bull wheel, about level with the axle thereof. On the opposite side of the bull wheel was a brake. This brake and friction pulley were so connected together that, by the use of a lever with its fulcrum near the friction pulley, the pulley would be drawn against the bull wheel, while the brake on the opposite side would be released, and vice versa. When the lever was raised to a vertical position, the friction wheel was released from the bull wheel, and the brake was applied. When the lever was placed in a horizontal position, the friction wheel was applied, and the brake was released. The friction wheel was in constant motion. The boy was employed to operate this lever. While in this employment, he caught his right hand either in the friction pulley or between the brake and the bull wheel. The result was the mangling of his hand so that it is of little use. This action was brought by his father, as guardian ad litem, to recover damages.

Two complaints were filed in the action. In the first complaint it was alleged that the injury occurred by the hand being caught in the friction pulley while the car was being drawn up the incline. In the next complaint, it was alleged that the injury occurred by the hand being caught between the brake and the bull wheel while the car was going down the incline. At the trial the boy testified, through an interpreter, that the injury occurred in the last-named way. No one except the boy saw the accident. The complaint, in addition to the fact that the boy was under 14 years of age, alleged that the defendant neglected to warn the boy of the dangerous condition of the place, or to caution him as to such dangers and hazards, and also that the defendant had neglected to guard the dangerous places upon the machine. The defendant for answer denied the allegations of the complaint, and pleaded that the boy assumed the risk and was guilty of contributory negligence. The defendant also pleaded that the boy was employed at the urgent request of his father, who represented to the defendant that the boy was over the age of 16 years and competent and able to do the work; that the defendant relied upon the representations made by the father and believed that the boy was, as he appeared to be, over the age of 16 years; that the boy was employed solely by reason of the representations made and the appearance of the boy, and not otherwise. The trial court sustained a demurrer to the last-named affirmative defense. During the trial of the case, the defendant offered to show that it had used care to ascertain the age of the boy, and had exercised good faith in giving the boy employment; and requested the court to instruct the jury to the effect that, if the defendant used care in order to determine the age of the boy, and had been informed by the boy's father that the boy was over 14 years of age, and that, if the age and appearance of the boy were such as to lead the defendant to believe, and that if from these considerations the defendant did actually believe, that the boy was over the age of 14 years at the time of the employment, then the defendant would not be guilty of a violation of the statute in employing the boy. The trial court denied this request and instructed the jury, in substance, that, if they found that the boy was under the age of 14 years at the time of his employment or injury, and that he was employed to work in this mill or factory and was injured therein, the employment was unlawful; that the defendant assumed all the risk; that the defense of contributory negligence of the plaintiff was not available to the defendant; and that the representations made by the father as to the age of the boy were no defense to the action. The jury returned a verdict in favor of the plaintiff, for $8,500. This appeal is prosecuted from the judgment entered upon the verdict.

The appellant argues that the court erred in sustaining the demurrer to the defense of good faith, and in instructing the jury to the effect that the good faith of the defendant in employing the boy was immaterial in the case. The statute makes it unlawful for any person to employ a male child under 14 years of age in any factory, without the written permission thereto of a judge of the superior court of the county wherein such child may live. Laws 1909, p. 948, § 195. The same statute also makes it unlawful for any person, having the care, custody, or control of such child, to permit such employment. It is obvious that the Legislature under its police power sought to...