Groesbeck v. Lake Side Printing Co.

• Decision Date: 03 December 1919
• Docket Number: 3362
• Citation: 55 Utah 335,186 P. 103
• Court: Utah Supreme Court
• Parties: GROESBECK v. LAKE SIDE PRINTING CO

186 P. 103

55 Utah 335

GROESBECK v. LAKE SIDE PRINTING CO

No. 3362

Supreme Court of Utah

December 3, 1919

Appeal from District Court, Third District, Salt Lake County; R. S Porter, Judge.

Action by Percy Groesbeck against the Lake Side Printing Company.

Judgment for defendant, and plaintiff appeals.

REVERSED and REMANDED, with directions.

Morgan & Huffaker and M. L. Ritche, all of Salt Lake City, for appellant.

Stewart Stewart & Alexander, of Salt Lake City, for respondent.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff, a minor, by his guardian ad litem, brought this action against the defendant, a corporation, in the district court of Salt Lake county, to recover damages for personal injuries. The district court directed a verdict for the defendant, from which the plaintiff appeals.

The plaintiff, in his complaint, in substance alleged that he is a minor of the age of fourteen years; that the defendant is a corporation, and at the time of the injury complained of he was in its employ; that some time after he entered the employ of the defendant, the date being stated in the complaint, he was directed to work at a job press and directed to print numbered memoranda slips and was directed not to lose any "as they were numbered in a series"; that when he entered said employment the plaintiff "was entirely inexperienced in the use of machinery and ignorant of the danger surrounding the use of said machine (said job press)"; that the defendant failed to instruct the plaintiff as to the proper manner of operating said job press and failed to warn him of the dangers incident to its operation; and that defendant negligently directed him to operate said job press without explaining the dangers to which one inexperienced in operating the same would be exposed, etc.; "that while operating said machine or press one of said memoranda slipped from plaintiff's hand and fell to the interior of said press machine," and plaintiff, in attempting to take said memorandum slip from said press, got his fingers "caught in said machine and crushed," etc. After alleging that plaintiff was paid one dollar per day for his services, and making other necessary allegations respecting the injury and damages, plaintiff prayed judgment.

Defendant, in its answer, admitted the allegations respecting employment, the age of the plaintiff, and that he was earning one dollar per day, and denied all the alleged negligence on the part of the defendant. The defendant, with great particularity and detail, described the job press and how it was operated and how the injury to plaintiff occurred. As an affirmative defense, it alleged that whatever danger there was in operating said job press was open and obvious to any one; that plaintiff knew and appreciated the danger, and "whatever injuries that the said plaintiff suffered were received on account of plaintiff's gross carelessness and contributory negligence."

After the plaintiff had produced his evidence in support of the allegations of his complaint, and rested, the defendant moved the court for a directed verdict. The court granted the motion and directed the jury to return a verdict in favor of the defendant. The court based its ruling upon two grounds: (1) That under the evidence adduced by the plaintiff the defendant was not guilty of negligence in failing to instruct or warn him in operating the job press; and (2) that whatever danger there was in operating said job press was open and visible to the plaintiff, and that he must have seen it in attempting to rescue the memorandum slip from the press, and was therefore guilty of negligence as matter of law.

It is impractical to set forth the evidence within the limits of an opinion. Moreover, in view that we feel constrained to reverse the judgment upon the ground that the evidence was sufficient to take the case to the jury, and for that reason a new trial must be granted, we shall refrain as much as possible from discussing the effect of the evidence. We shall therefore, as briefly as possible, merely refer to the substance of the evidence relating to the controlling facts. In that connection it must be kept in mind, however, that in view that the court disposed of the case on defendant's motion the evidence must be considered and applied most favorable to the plaintiff's cause of action.

The evidence, without conflict, shows that when plaintiff was employed by the defendant he was fourteen years and four months of age; that for some time preceding that time, and while he was attending school, he had-intermittently and irregularly been engaged in what is called "feeding" a job press for one Coniff; that his experience was quite limited, indeed he had only been feeding what he called cards or heavy paper on Mr. Coniff's job press; that after school closed for the season he was desirous of obtaining something to do in some printing establishment, and with that end in view was passing up Main street in Salt Lake City when he noticed a sign in defendant's window that it wanted a "press feeder"; that he went into the office of the defendant and applied for the position; that the man in charge of the office to whom he applied sent him downstairs; that he went downstairs as he was directed; that the man, who was acting as foreman of the press room on account of the regular foreman's absence on his vacation, merely asked plaintiff where he had worked; that plaintiff told him where he had worked, and the man in charge then asked whether Mr. Coniff still operated the establishment referred to by the plaintiff. The plaintiff told the acting foreman that he did, and the foreman asked him whether he had been feeding a job press for Coniff, and plaintiff told him that he had done so some times. The acting foreman said he was exceedingly busy and that he was short two men and needed help. The acting foreman also testified as a witness for the plaintiff that he did not stop to examine into plaintiff's ability or experience to operate the job press, but set him to work, and that he watched him for a little while; that he set him to work on a machine like the one Mr. Coniff had and noticed that, while plaintiff was not a skilled or experienced "feeder," yet he got along with the work for about two weeks or a little longer, when the foreman of the establishment returned. The foreman also testified for the plaintiff and said that he noticed the plaintiff and in referring to what he observed about him said: "He impressed me as having little experience in feeding presses." The plaintiff was, however, directed to feed certain "sales slips" on the job press. This he did on the afternoon before the day of the injury, and it was observed that he was not getting along first rate with that work, so he was directed to work on another press. On the following day, however, it seems, he was again placed back to feed the sales slips. These slips were printed on thin paper, to which plaintiff said he was unused, and were serially numbered. He was directed by the foreman not to lose or spoil any of the slips, since if that occurred it would spoil "the book," as the witness termed it.

The evidence shows that the defendant operated two kinds of job presses. One kind had a mechanism which, by the witnesses, is called a "rocker" or "rocker tail," which was in front of the feeder but below the printing mechanism, while the other machine did not have such a mechanism. It seems that, in case the paper or card on which printing was to be done slipped from the guides after it was placed therein by the feeder, it would fall upon this rocker tail in the one kind of press and in the other, which did not have the rocker tail, the paper or card would fall to the floor. It also appears that, while the plaintiff had operated or had been feeding both kinds of presses, he had operated or fed the kind without the rocker tail most, or about two-thirds, of the time that he was in defendant's employ. His testimony, which we must assume to be true, leaves no room for doubt that he did not clearly understand the operation of the so-called "rocker tail," which, it seems, was used as a device to balance other parts of the machinery and was so constructed that when the press was in use it would rise and fall and in doing so would close tight up against the crank shaft which passed horizontally in front of the feeder or operator but below the feeding mechanism. It further appears that in feeding the slips the plaintiff had experienced some trouble, in that some of them would fall on the floor or otherwise get soiled. It also appeared that one of the slips fell upon this so-called "rocker tail," and when the plaintiff noticed it lying there he, without stopping the machine, which he might have done, attempted to "grab" it, as he says, from the rocker tail, and in doing that his fingers were caught between the shaft aforesaid and the upper edge of the rocker tail and injured, so that all four fingers of his right hand had to be amputated at or near the second joint. The plaintiff, in testifying, clearly indicated, when all of his testimony is considered, that he did not notice the operation of the rocker tail and apparently was not aware that it rose and fell and in doing so would close up tightly against the crank shaft as before stated.

Defendant's counsel insist, and it seems the district court so held, that the movements of the rocker tail were apparent to any one and that the plaintiff, the same as any one else, was bound to know that, if he placed his hand or fingers between the upper edge of the rocker tail and the shaft aforesaid, they would be injured or crushed. Much time and effort were spent in cross-examining the plaintiff to...