Krisch v. Richter

• Decision Date: 15 June 1910
• Citation: 130 S.W. 186
• Parties: KRISCH v. RICHTER.
• Court: Texas Court of Appeals

130 S.W. 186

KRISCH v. RICHTER.

Court of Civil Appeals of Texas.

June 15, 1910.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Henry Krisch, by his next friend, August Santleben, against William L. Richter. Judgment in favor of defendant, and plaintiff brings error. Affirmed.

Selig Deutschmann and Salliway & McAskill, for plaintiff in error.

FLY, J.

This is a suit for damages instituted by plaintiff in error, through his next friend, August Santleben, alleged to have arisen through the negligence of a foreman of defendant in ordering him to clean a certain machine while it was in motion, and that while plaintiff was so engaged his hand caught in certain cogs and one joint was mashed off the second finger, and the little finger and middle finger were mashed and lacerated. He alleged that he was a minor between 17 and 18 years of age and inexperienced, and did not know the danger incident to cleaning a machine while it was in motion. After hearing the evidence the court instructed a verdict for the defendant.

Plaintiff testified that he was an employé of defendant and at the time of the accident was between 17 and 18 years of age. He stated that he had been at work for defendant, in his bakery, for nearly a year, and had seen the machine, which mixed the flour and dough, run a great deal and knew the location of the cogs and wheels, and knew that the cogs were dangerous when the machine was in motion. That on a certain Sunday night, after midnight, and a short while before the work was to cease and the machines to be stopped, plaintiff was ordered by his foreman to clean the machine, which was in motion and full of dough, and while engaged in cleaning the machine his fingers were caught in the cogs and injured. Plaintiff was very contradictory in his statements, but it was clear that he was thoroughly acquainted with the machine and the danger attending work about the cogs while the machine was in motion. He stated: "I had seen those big cogs run into the little ones for a year and I certainly thought it was dangerous. * * * There was nothing at all to prevent me from seeing those two cog wheels. * * * I cleaned those wheels every day for a year and didn't know what a cog wheel would do or that there was any danger in going between those two wheels, and didn't learn anything about the bakery business in that year's time until after I got hurt. * * * Yes, I have started and stopped that motor. I knew how to do that. I don't know how often I would do it. I did not do it every time I cleaned the machine; most every time, and every time I started it or stopped it these big cog wheels moved. I saw them move every time it started for about a year, and I had cleaned these same cog wheels every day for six months. I found out the purpose of them two cogs in the back, but I didn't know they would hurt my fingers if I ran them through those two cog wheels. No, sir; I never dreamed of such a thing. If the foreman had told me to stick my fingers in there I would have done so. I thought there was no danger in sticking my fingers in the cog wheels. I had seen them running every day for a year. I never did see a piece of machinery of that kind where there wasn't danger in it. Well, that is what I was told, that there was danger in all machines when you got your hands in it. * * * I knew that everything else was dangerous except the cog wheels. * * * There was nothing there to prevent me from seeing the two cog wheels and I did see them at the time I was hurt. Yes; I saw them running together." The uncontroverted testimony of defendant was to the effect that he always told his employés not to put their fingers in the cogs or any part of the machinery.

The whole of the evidence indicated that plaintiff must have known, and did know, that it was dangerous for him to work with a rag about his fingers in close proximity to the cogs of a moving machine. The danger was open and just as apparent to him as to the foreman. It did not take any skill or extra knowledge for any human being, even of very limited mental capacity, to know that if the fingers are placed between interlocking cogs of a moving machine that they will be injured. As said by the court in Jones v. Railway, 11 Tex. Civ. App. 39, 31 S. W. 706: "It did not take skill and superior knowledge to ascertain this, but the exercise of the same faculties that would teach a man not to place his hand in the fire, or voluntarily place himself in the way of any plain and palpable danger." It is undoubtedly the rule that where the danger is as apparent to the mature employé as to his employer, he cannot recover damages resulting from such dangerous agency. Railway v. Hester, 72 Tex. 40, 11 S. W. 1041; Railway v. Williams, 72 Tex. 159, 12 S. W. 172; Railway v. French, 86 Tex. 96, 23 S. W. 642.

The only fact in this case that differentiates it from the case cited is the minority of the plaintiff. He was at the time of the injury 17 years and 9 months old and had been working about the machine for a year; it being one of his duties to clean it. He understood how to start and stop the machine and understood how the cogs worked into each other. There was no evidence that tended to show that the plaintiff was an idiot or lunatic, or that he was even a person of weak mind. He had intelligence enough to know how to earn a livelihood, and it must be presumed that he was acquainted with the plainest laws of nature. Does minority alone exempt him from the effects of his acts of negligence about the machinery? If not, the testimony of the plaintiff made out a clear and conclusive case of contributory negligence on his part.

It is the rule in this state that a minor, who possesses such a degree of intelligence as to know and appreciate the danger of his act is chargeable with contributory negligence, just as the adult person is chargeable. If he has the knowledge of the situation and the intelligence to appreciate the dangers thereof, his minority cannot shield him from the consequences of his negligent acts. Railway v. Rodgers, 89 Tex. 675, 36 S. W. 243; Railway v. Phillips, 91 Tex. 278, 42 S. W. 852; Freeman v. Garcia, 121 S. W. 886. In the case of an adult it has been held that the danger of cleaning machinery in motion is apparent, and that where an employé puts his hand into the recesses of a moving machine the employer cannot be held answerable for the consequences. Stoll v. Hoopes (Pa.) 14 Atl. 658; Robinska v. Mills, 174 Mass. 432, 54 N. E. 873, 75 Am. St. Rep. 364.

In the case of minors the general rule is that minority places the injured party in the same position as the inexperienced adult so far as machinery is concerned, and that where the danger is apparent, or the servant has been warned of the danger, negligence will be imputed to a minor as well as an adult, if any injury is received from the machinery. When the young man has been warned as to certain dangers by his employer and in addition has labored with the machinery about which he has been warned so as to become experienced, and who is shown by the evidence to be experienced, he will be held to appreciate the dangers of the situation, as well as the adult, and cannot recover damages for an injury. Rikel v. Ferguson, 117 N. Y. 658, 22 N. E. 1134; Crown v. Orr, 140 N. Y. 450, 35 N. E. 648; Palmer v. Harrison, 57 Mich. 182, 23 N. W. 624; Bohn Mfg. Co. v. Erickson, 55 Fed. 943, 5 C. C. A. 341; Stuart v. Street Railway, 163 Mass. 391, 40 N. E. 180; Pratt v. Prouty, 153 Mass. 333, 26 N. E. 1002; Cunningham v. Bath Iron Works, 92 Me. 501, 43 Atl. 106; Downey v. Sawyer, 157 Mass. 418, 32 N. E. 654; Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360; Silvia v. Sagamore Mfg. Co....