Perry v. Tozer

• Decision Date: 13 November 1903
• Docket Number: 13,568 - (59)
• Citation: 97 N.W. 137,90 Minn. 431
• Parties: JAMES ELMER PERRY v. DAVID TOZER
• Court: Minnesota Supreme Court

97 N.W. 137

90 Minn. 431

JAMES ELMER PERRY v. DAVID TOZER

Nos. 13,568 - (59)

Supreme Court of Minnesota

November 13, 1903

Action in the district court for Washington county by plaintiff, a minor under the age of sixteen years, by his guardian ad litem, to recover $25,000 for personal injuries. The case was tried before Williston, J., and a jury, which rendered a verdict in favor of plaintiff for $7,750. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Employment of Infant -- Dangerous Machinery.

The employment of an infant between the ages of fourteen and sixteen years in a sawmill, whose owner had not procured a certificate from the school superintendent or school board permitting such employment, as provided for in Laws 1895, p 386 (c. 171), is illegal; and if injury results to the employee who is within such age from a failure properly to guard dangerous machinery at which he was required to work these facts make a prima facie case for damages against the employer.

Evidence.

Evidence considered, and held that it reasonably tends to support the alleged negligence of defendant in failing properly to guard dangerous machinery operated in connection with a slab conveyor in a sawmill where plaintiff was employed; also that plaintiff had not assumed the risks incurred by his employment, and was not guilty of want of ordinary care which contributed to his injury.

Damages.

Where the evidence tended to show that a boy of fourteen years of age was so seriously injured that an amputation of his right leg below the knee was necessary, and that he suffered considerable pain and injury, held, that a verdict of $7,750 cannot be held excessive.

Barrows & Morrison, for appellant.

Arthur W. Selover, for respondent.

OPINION

LOVELY, J.

Action to recover for personal injuries sustained by a boy of fourteen years while employed in defendant's sawmill at South Stillwater. There was a verdict for plaintiff. This appeal is from an order denying defendant's motion for judgment notwithstanding the verdict, or a new trial in the alternative.

The evidence tended to show that plaintiff had worked in defendant's mill tending a "slab conveyor" twenty-four days when the accident occurred. The purpose of the slab conveyor was to transmit boards to two circular saws, where they were to be cut, and from thence carried to a place below, where pieces that could be used for lumber would be picked out by other servants. Part of the working machinery connected with the slab conveyor consisted of two metal sprocket wheels, the upper one fastened to a shaft near the top of a table where the saws were set, adjoining which plaintiff was required to stand, the surface being at his breast. The lower sprocket wheel was adjusted on a shaft three feet below the upper one. Both wheels were kept in motion by chain belting, whereby the attached shafts and saws thereon were propelled with great velocity. It was the plaintiff's duty to stand upon a platform adjacent to the lower wheel, which was covered to some extent by a wooden box. He was required to oil the machinery, handle the levers which stopped the movement of the sprocket chains and shafts, and keep pieces of wood from accumulating in front of the saws to prevent their being clogged. The necessity for removing the refuse wood from the front of the saws was quite frequent, and required plaintiff to use a stick, and to reach forward over the table to accomplish this purpose. When the accident occurred plaintiff was standing with his feet near the guard of the lower sprocket wheel. In attempting to remove pieces of refuse wood which were clogging the saws, he, under his claim, inadvertently intruded one of his feet into the rapidly moving gearing which was behind the outer surface of the box covering. It was caught and pulled into the machinery, inflicting injuries which required the amputation of his right leg below the knee, with severe consequent pain and suffering. There was a general verdict for plaintiff. Special questions were submitted at request of defendant, with answers favorable to plaintiff.

The alleged negligence for which plaintiff seeks recovery is: (1) His unlawful employment by reason of his immature years; (2) the neglect of defendant properly to guard the lower sprocket wheel and chain where his foot was caught; and (3) the failure by his employer to give proper warnings and instructions of the risks incurred in the service. The assignments of error question the sufficiency of the evidence, the propriety of several instructions given at the trial, as well as the refusal to give others in behalf of defendant.

From an examination of the entire evidence we are satisfied that it reasonably tends to show that the guards in front of the gearing where plaintiff's foot was caught, which to outward appearances protected him, would permit the slipping of the operator's foot into the revolving machinery behind the wooden box covering it; and whether the defendant was negligent in this respect was for the jury. Neither is it conclusive that the plaintiff was required to have made a more thorough examination of the gearing and guard near which he was required to place his feet while performing his duties, nor that he assumed the risks and hazards occasioned thereby; hence that part of the blended motion asking for judgment was properly denied. We cannot say, either, that plaintiff should have exercised greater caution, or failed in ordinary care, in preventing his foot from being caught. The evidence tended to show that he had received no warning of danger, and upon all these questions the verdict must be held conclusive, and allowed to stand, unless there was error in respect to a material instruction upon the burden of proof, and the damages are so large, in view of plaintiff's injuries, as to indicate that it was the result of passion and prejudice.

The serious question for our consideration on this review arises upon an instruction wherein the court, in reference to plaintiff's age, attempted to give effect to two legislative enactments of this state -- Laws 1895, p. 386 (c. 171), as amended by Laws 1897, p. 625 (c. 360). The first section of chapter 171, p. 386, Laws 1895, forbids the employment of children under fourteen years of age in any factory, workshop, or mine. Section 2 prohibits any child who can attend school from being employed at any occupation during school hours. Section 3 provides that the commissioner of labor and assistant factory inspector shall have a right to demand a certificate of the physical fitness of infants for labor from some regularly licensed physician. Section 7, which is specially material here, provides that:

"No child actually or apparently under sixteen years of age shall be employed in any factory, workshop or mercantile establishment or in the service of any public telegraph, telephone or district messenger company, or other corporation, unless the person, firm or corporation employing said child procures and keeps on file * * * a full and complete list of such children employed therein."

Section 8 provides that in towns or cities having a superintendent of schools the certificate provided for in section 7 shall be issued by him, or when there is no superintendent of schools then by a member of the school board; and provides for a statement therein of special qualifications of the child. Section 10 provides for a visitation of the factory, workshop, etc., by the superintendent of education and the school board. Section 12 enacts that:

"Every owner, superintendent, agent or overseer of any factory, workshop," etc., "who employs or permits to be employed therein or thereby any child contrary to the provisions of this act and any person who employs a child contrary to the provisions of this act * * * shall be guilty of a misdemeanor and upon conviction thereof * * * shall be fined not less than $20 nor more than $50 for each and every offense. A failure to produce to an officer or employee of the bureau of labor, or to a member or authorized agent of the board of education or board of trustees of the city or school district in which the said child is employed, on demand, the certificate and register required by this act, shall be prima facie evidence of the illegal employment of the child whose certificate is not produced."

This law was amended by Laws 1897, p. 625 (c. 360), which provides that:

"No child under fourteen years of age shall be employed at any time in any factory or workshop or about any mine. No such child shall be employed in any mercantile establishment nor in the service of any telegraph, telephone or public messenger company except during the vacation of the public schools in the town where such child is employed. No child under sixteen years of age shall be employed at any occupation dangerous or injurious to life, limb, health or morals."

Section 5 of the previous law is amended so that it reads as follows:

"Whenever it appears upon due examination that the labor of any minor who would be debarred from employment under the provisions of sections two and four...