Kirkham v. Wheeler-Osgood Co.

• Citation: 39 Wash. 415,81 P. 869
• Court: United States State Supreme Court of Washington
• Decision Date: 01 August 1905
• Parties: KIRKHAM v. WHEELER-OSGOOD CO.

81 P. 869

39 Wash. 415

KIRKHAM v. WHEELER-OSGOOD CO.

Supreme Court of Washington

August 1, 1905

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Lee Kirkham, an infant, by J. B. Kirkham, his guardian ad litem, against the Wheeler-Osgood Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hudson & Holt, for appellant.

Govnor Teats, for respondent.

RUDKIN, J.

On and prior to the 8th day of January, 1904, the defendant owned and operated a factory for the manufacture of sash, doors moldings, etc., in the city of Tacoma. On the 10th day of December, 1903, the plaintiff, an infant of the age of about 12 years, entered the employ of the defendant. Up to the 6th day of January, 1904, the plaintiff and his elder brother were engaged in tying up siding in a shed adjacent to the factory. On or about January 6th they were transferred to the factory to point pickets and tie them into bundles. In close proximity to the place where the plaintiff was at work was a sticker machine, used in the manufacture of pickets. On the last-named date a sliver became fast in the sticker machine and while the operator's back was turned the plaintiff attempted to remove it. In doing so his hand came in contact with the rapidly revolving knives in the head of the machine causing the loss of the third and fourth fingers and a portion of the hand. The plaintiff had nothing to do with the operation of the sticker machine, and it was no part of his duty to remove the sliver therefrom. This action was brought to recover damages for the injuries so received.

The complaint alleged negligence on the part of the defendant in putting the plaintiff at work in a dangerous place without proper instructions, and without warning him against the dangers by which he was surrounded and to which he was exposed, and also negligence in employing the plaintiff in violation of the act of March 16, 1903, entitled 'An act to regulate the employment of child labor and to prohibit the employment of females under the age of eighteen years as public messengers and fixing a penalty for the violation thereof.' Laws 1903, p. 261, c. 136. The answer, in addition to the denials, alleged affirmatively contributory negligence on the part of the plaintiff, and that the plaintiff at the time of his employment represented that he was 14 years of age. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff. The defendant appeals.

Numerous errors are assigned by the appellant, all of which are discussed under six general heads, and we will consider them in the same order. The first error assigned relates to instructions as to future suffering and loss. The court instructed the jury that if they found for the respondent they might take into account the pain and suffering the respondent had endured and may endure as the ordinary and actual result and as a consequence of the injury sustained. The first objection to this instruction is that there was no evidence as to future pain and suffering, and that the question should not have been submitted to the jury. It is true there was no evidence, to speak of, as to future suffering or pain, aside from the nature of the injury itself. But a hand, mangled as this was, is subject to injury and consequent pain through life, where an uninjured member would not be affected, and we think this is so far a matter of common knowledge that the court would not be warranted in withdrawing the question of future pain and suffering from the jury. Like the question of the permanency of the injury the injury in this case speaks for itself. It was further objected to this instruction that the court did not confine the jury to such pain or suffering as would reasonably or probably flow from the injury complained of. We do not think this objection is tenable, especially in view of the fact that the court instructed the jury that under no circumstances should an unreasonable or excessive verdict be returned.

The next assignment is that the court erred in its instructions as to the child labor act of 1903, supra. This contention of the appellant is based upon the language of the act which declares that no child under the age of 14 years shall be hired out in any factory, etc. It is contended that a child can only be hired out by the parent or guardian, and that the prohibition against the employment does not, therefore, extend to the employer. This contention cannot be upheld. The manifest purpose of the act is to prohibit the employment of children in certain places, and the prohibition extends to all parties connected with the employment. The employment as well as the hiring out is forbidden. An employer who knowingly employs or keeps in his employ a minor within the prohibited age is guilty of a violation of the statute, and the employment itself is illegal. In the case at bar the minor was employed without the intervention of either parent or guardian, and, if we adopt the views of counsel, the act punishes only the child himself, the very person whom it sought to protect. It is needless to say we can adopt no such construction.

The next assignment relates to instructions on the weight of the evidence. In speaking of the instructions which it was incumbent on the appellant to give the respondent on entering its employ, the court said: 'You are instructed that it was not enough to give the plaintiff, or one of his age general instructions as to the dangers, but the instructions to the boy should have been such as would have satisfied a reasonably prudent and careful person that he was familiar with the exact danger that would be likely to befall a boy of his age while working around the place where he was injured.' Counsel...