Inland Steel Co. v. Yedinak

• Decision Date: 23 February 1909
• Docket Number: No. 21,376.,21,376.
• Citation: 172 Ind. 423,87 N.E. 229
• Parties: INLAND STEEL CO. v. YEDINAK.
• Court: Indiana Supreme Court

172 Ind. 423

87 N.E. 229

INLAND STEEL CO.

v.YEDINAK.

No. 21,376.

Supreme Court of Indiana.

Feb. 23, 1909.

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by John Yedinak, minor, against the Inland Steel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

For opinion in Appellate Court, transferring cause to Supreme Court, see 86 N. E. 503.

Wm. J. Whinery and John B. Peterson, for appellant. J. E. Westfall and F. M. Gavit, for appellee.

MONTGOMERY, J.

Appellee recovered judgment against appellant on account of personal injuries sustained while in its employ. Appellant charges the trial court with error in overruling its demurrer to each paragraph of complaint, and in overruling motions for judgment on the answers of the jury to special interrogatories notwithstanding the general verdict, and for a new trial.

The complaint is in two paragraphs, the first of which alleged substantially the following facts: That appellant was, at and before the time of the happening of the grievances complained of, a corporation engaged in the manufacture of iron and steel, and that appellee was a minor and under the age of 16 years, and was employed by appellant in its rolling mill, and required to work at night for 12 hours each day for 6 days in each week; and that for more than a week prior to the time of receiving his injuries he had been compelled to and did work, under his employment, 14 hours each day, but was not required so to work for the purpose of making a shorter day's work on the last day of the week; that under his employment appellee was required to and did open and hold open the doors of certain furnaces, while iron was being placed therein or taken therefrom, when requested so to do by appellant or by workmen whose duty it was to perform such work; that iron was so placed in said furnaces every half hour, and during the intervals appellee had no duty to perform except to wait in said mill, and be in attendance ready to open and hold such doors when so directed; that appellant furnished appellee no place in which to wait when not actively engaged, but directed him to wait in said rolling mill; that at 5 o'clock p. m. on October 5, 1903, appellee went to work, and was required to and did remain continuously at his said work until 4 o'clock a. m. of the following day, and was then in the performance of said work under his employment; that he was then but 13 years of age, and became weary and exhausted from exertion and loss of sleep, caused by his continuous work in his said employment, and, having no duty to perform except to wait in attendance, sat down upon an iron door in said mill, four feet distant from, and elevated two feet above, a certain railroad track used by appellant to convey iron in cars to said furnaces, and for no other purpose; that it was then the rule and custom of appellant to run no cars over said track after 1 o'clock a. m. of any day until after the iron then in the furnaces was removed therefrom, and appellee knew of such rule and custom at the time he sat down as above stated; that iron had been placed in said furnaces after 1 o'clock in the morning of October 6, 1903, and was still therein when appellee sat down; that no iron had been removed from such furnaces after 1 o'clock a. m. of said day, and none could be removed therefrom until appellee should assist in removing the same, as he knew; that appellee had not been instructed or notified as to any danger in sitting near said track, and by reason of his youth, inexperience, exhaustion, and sleepiness he was incapable of appreciating any danger therefrom; that upon sitting down upon said iron door, because of such exhaustion and sleepiness, he immediately and involuntarily fell asleep and became unconscious, and while so asleep his foot and leg were involuntarily placed upon the rail of said track, and while so on said track, and before the iron in said furnaces had been removed therefrom, appellant caused a car loaded with iron to be moved along said track and over said rail and over appellee's foot and leg, thereby crushing the bones, muscles, and flesh thereof and producing the injuries of which he complains.

The second paragraph of complaint alleges the same general facts, and charges as the basis of the actionable negligence that appellant wrongfully employed appellee when under 14 years of age to work in said rolling mill, and carelessly and negligently continued him in said employment until he was injured.

The first paragraph of this complaint is founded upon section 8021, Burns' Ann. St. 1908 (Acts 1899, p. 231, c. 142), which prohibits the employment of a person under 16 years of age in a manufacturing establishment for more than 60 hours in any one week, or for more than 10 hours in any one day except for the purpose of making a shorter day of the last day of the week. The second paragraph is based upon section 8022, Burns' Ann. St. 1908 (Acts 1899, p. 232, c. 142, § 2), which forbids the employment of a child under 14 years of age in any manufacturing establishment within this state. The violation of these statutes is made a misdemeanor, punishable by fine, or fine and imprisonment for repeated offenses. Section 8045, Burns' Ann. St. 1908.

Appellant's counsel contend that neither paragraph of complaint alleges facts sufficient to bring appellee within the provisions of the statutes cited, to show freedom from fault or nonassumption of the risk on the part of appellee, or the neglect of any duty owing to him by appellant, or a casual connection between the negligence charged and the injury of which complaint is made. It is averred that appellant was engaged in the manufacture of iron and steel in this state, that appellee was under 14 years of age, and that appellant employed him in its mill at an age prohibited, and required him to work a number of hours in excess of the maximum limit fixed by law. These allegations are clearly sufficient to show a violation of the terms of the statutes cited, and to make a case of negligence per se against appellant. Nickey et al. v. Steuder, 164 Ind. 189, 73 N. E. 117.

In actions for personal injury caused by negligence, the plaintiff's contributory fault constitutes an affirmative defense, which the complaint need not disavow. Section 362, Burns' Ann. St. 1908. It is also well settled that a master may not rightfully invoke the principle of assumed risk to defeat an action for injuries caused by his violation of a specific statutory mandate or prohibition. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319;Monteith v. Kokomo, etc., Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026; Green v. American Car, etc., Co., 163 Ind. 135, 71 N. E. 268;Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899;Robertson v. Ford, 164 Ind. 538, 74 N. E. 1;Bessler v. Laughlin, 168 Ind. 38, 79 N. E. 1033.

The complaint clearly shows that the position assumed by appellee immediately before falling asleep was not ordinarily hazardous, nor, in the usual and customary conduct of affairs, could any danger from a moving car have threatened him without his previous knowledge. It is averred that he had no notice or warning of peril in that position, and that his youth, and the exhausted condition of his body and mind brought on by overwork, precluded appreciation of the danger which overtook him. In our opinion, the special facts alleged do not subject appellee to the charge of contributory negligence.

The suggestion that no neglected duty owing by appellant to appellee is shown requires but little comment. If this complaint is true, appellant violated a duty not only owing to appellee, but to the state by employing a child of tender years and subjecting him to excessive labor and running one of its cars at an unusual time, without notice or warning, so as to inflict injury upon his person when he was asleep and not conscious of the impending danger.

Appellant's insistence that a causal connection must be shown between the negligence charged and the injury complained of is undeniably true. A violation of these penal statutes constitutes negligence per se, but to make such negligence actionable it must be a proximate cause of the injury for which the action is brought. Nickey v. Steuder, 164, Ind. 189, 73 N. E. 117;Payne v. Chicago, etc., R. Co., 129 Mo. 405, 31 S. W. 885;Bluedorn v. Missouri Pac. R. Co., 121 Mo. 258, 25 S. W. 943;Mathiason v. Mayer, 90 Mo. 585, 2 S. W. 834; Lincoln Tr. Co. v. Heller, 72 Neb. 127, 100 N. W. 197, 102 N. W. 262; Omaha St. R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531;Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 458;Seibert v. McManus, 104 La. 404, 29 South. 108;Kyne v. Wilmington, etc., R. Co., 8 Houst. (Del.) 185, 14 Atl. 922;Gibson v. Leonard, 143 Ill. 182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376.

Appellant is charged in the first paragraph of complaint with the employment of a child to work in its mill, and with having subjected him to excessive labor, in violation of a penal statute. The mere performance of hard labor by an adult could rarely become the proximate cause of an actionable injury to himself, but would ordinarily constitute only the antecedent condition or occasion of the incurrence of any injury sustained. A different principle obtains when a child is employed and required to toil contrary to a positive law. The statute upon which this paragraph is founded was designed to protect children against the hardships and perils resulting from overexertion. A cardinal rule of law requires a master to give a young and inexperienced servant such instruction and caution regarding the dangers of his employment as are reasonably calculated to enable him to avoid injury. This duty becomes imperative and inflexible when such servant is forbidden by law to assume the hazards to which he is exposed. An...