Louisville, H. & St. L. Ry. Co. v. Lyons

• Decision Date: 21 October 1913
• Citation: 155 Ky. 396,159 S.W. 971
• Parties: LOUISVILLE, H. & ST. L. RY. CO. v. LYONS et al.
• Court: Kentucky Court of Appeals

159 S.W. 971

155 Ky. 396

LOUISVILLE, H. & ST. L. RY. CO. v. LYONS et al.

Court of Appeals of Kentucky.

October 21, 1913

Appeal from Circuit Court, Breckenridge County.

Action by McKinley Lyons, by his guardian, and others against the Louisville, Henderson & St. Louis Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. R Skillman, of Louisville, and Frank C. Malin and R. A. Miller both of Owensboro, for appellant.

Claude Mercer, of Hardinsburg, for appellees.

CARROLL J.

The appellee McKinley Lyons, a boy under 15 years of age employed as a section hand by the appellant company, was thrown from a hand car on which he was riding with the section crew. The speed of the car while it was going down a heavy grade was suddenly arrested by an iron bar that fell from the car to the track, and Lyons, who was on the front end of the car working one of the motor levers, was thrown to the track and the car ran over him, inflicting serious and permanent injuries. A settlement, so inadequate as to be fraudulent, was made soon after the accident between representatives of the company and the father of Lyons, but, before it was consummated by the payment of the sum agreed upon, this action was brought by the guardian of Lyons to recover damages for his injuries, and the settlement was abandoned by both parties.

In the petition a recovery was sought alone upon the ground that the injuries complained of were caused by the negligence of the section foreman in charge of the hand car, in operating and loading the car. The answer, after traversing the averments of the petition, affirmatively pleaded that the contributory negligence of Lyons was the proximate cause of his injury. This pleading being controverted, the issues, excepting an amended petition to be later noticed, were completed, and the case proceeded to a trial before a jury, with the result that a verdict was returned in favor of Lyons for $3,350, and judgment entered accordingly.

On the trial the plaintiff introduced in his behalf the section foreman in charge of the hand car when the accident occurred, and several of the section crew, as well as other witnesses, and, upon the conclusion of his evidence, the company moved the court to direct a verdict in its favor, which motion was overruled. When this motion was overruled, the plaintiff tendered, and there was filed over the objection of the defendant, an amended petition averring that, when he received the injuries complained of, "he was under 16 years of age and that the employment in which he was engaged at the time of the accident complained of was one dangerous to life and limb and so known to the defendant, its agents, servants, and employés in charge of the hand car from which plaintiff was thrown, to be dangerous to life and limb." When this amended petition was filed, the defendant moved the court to discharge the jury and continue the case upon the ground that it was surprised by the introduction into the case of the new issue presented by the amended petition. In support of this motion it filed an affidavit stating that, "while the operation of a hand car is attended with some danger, it is not a dangerous or hazardous occupation in the sense of the occupations and employments specifically prohibited in the statute as dangerous to life and limb, and if given opportunity the defendant can prepare to meet said issue and can and will subpoena witnesses and prove the operation of the hand car under ordinary circumstances is not dangerous to life or limb within the meaning of the statute or to the extent that it can be classed with the employments therein forbidden." The trial court overruled the motion to discharge the jury and continue the case, and permitted the averments of the amended petition to be controverted of record. The defendant then declined to introduce any evidence in its behalf, and the court, after refusing a number of offered instructions, gave to the jury only the two following instructions:

"(1) The court instructs the jury that if they believe from the evidence that the plaintiff at the time he was injured was under 16 years of age, and that the occupation in which he was engaged as servant of the defendant company was dangerous to life or limb, then and in that event the jury will find for the plaintiff. And, unless the jury believe as set out in this instruction, they will find for the defendant.

"(2) If the jury find for the plaintiff, they will award him by measure of damages such a sum of money as will fairly and reasonably compensate him for any mental and physical suffering, if any or either, and for any permanent impairment or reduction of his power to earn money which the jury believe from the evidence was caused by his falling or being thrown from the hand car mentioned by the witnesses on the occasion in controversy, not exceeding $20,000, the amount claimed."

It will be seen from the instructions given that the trial court put the case upon the averments of the amended petition and was of the opinion that the employment plaintiff was engaged in when injured came within the prohibition of the statute, and therefore the defense of contributory negligence could not be relied on. The effect of this ruling was to take from the jury every issue except the ones relating to whether or not the employment was dangerous to life and limb and the assessment of damages. The statute on which the amended petition was based is subsection 11 of section 331a, reading as follows:

"No child under the age of 16 years shall be employed at sewing belts, or to assist in sewing belts, in any capacity whatever, nor shall any child adjust any belt to any machinery; they shall not oil or assist in oiling, wiping or cleaning machinery; they shall not operate, or assist in operating, circular or band saws, wood shapers, wood joiners, planers, sandpaper or wood polishing machinery, emery or polishing wheels used for polishing sheet metal, wood turning or boring machinery, stamping machines in sheet metal and tinware manufacturing, stamping machines in washer and nut factories, operating corrugating rolls, such as are used in roofing factories, nor shall they be employed in operating any steam boiler, steam machinery, *** or other steam generating apparatus, or as pin boys in any bowling alley; they shall not operate or assist in operating dough brakes, or cracker machinery of any description, wire or iron straightening machinery, nor shall they operate or assist in operating rolling mill machinery, punches or shears, washing, or grinding or mixing mills, or calendar rolls in rubber manufacturing, nor shall they operate or assist in operating laundry machinery, nor shall such children be employed in any capacity in preparing any composition in which dangerous or poisonous acids are used, and they shall not be employed in any capacity in the manufacture of paints, colors or white lead, nor shall they be employed in any capacity whatever in operating or assisting to operate any passenger or freight elevator, nor shall they be employed in any capacity whatever in the manufacture of goods for immoral purposes, nor in any theater, concert hall, or place of amusement wherein intoxicating liquors are sold, nor shall females under 16 years of age be employed in any capacity where such employment compels them to remain standing constantly. Nor shall any child under 16 years of age be employed in any occupation dangerous or injurious to health or morals, or to lives or limbs, and as to these matters, the decision of the county physician or city health officer, as the case may be, shall be final."

It will be observed that this section specifies by name a number of occupations in which children under the age of 16 shall not be employed, but among these named occupations we do not find railroads or hand cars mentioned. But at the close of the section the Legislature inserted a general clause intended to and that does embrace "any occupation dangerous or injurious to health or morals, or to lives or limbs." The effect of this general clause being to prohibit the employment of children under 16 years of age not only in the occupation specifically mentioned but also in any occupation that is dangerous to health or morals or to lives or limbs. It will further be noticed that, as to the employments not specifically mentioned, the statute, in the concluding words, provides that, as to "occupations dangerous or injurious to health or morals or to lives or limbs, the decision of the county physician or the city health officer, as the case may be, shall be final." It was, of course, well known to the Legislature that there might be reasonable difference of opinion as to whether certain employments other than those specifically named in the statute were dangerous, and the obvious purpose of thus confiding to an officer the right to decide whether an employment was dangerous or not was to furnish to employers a means by which they might save themselves from the penalties of the statute in the event they employed a child in an occupation concerning the dangers of which there might be room for reasonable difference of opinion.

We understand this reference of the question to the decision of the official named to mean that, when an employer of labor wishes to engage the services of a child under 16 years of age in an occupation not specifically prohibited but that might be regarded as dangerous or injurious to health or morals or to lives or limbs, he may apply to the county physician or city health officer, as the case may be, and obtain from him a decision; and if this officer, after having submitted to him a full and fair statement of the nature of the employment, decides that it is not...