Rookstool v. Cudahy Packing Company

• Decision Date: 23 June 1916
• Docket Number: 18647
• Citation: 158 N.W. 440,100 Neb. 118
• Parties: ORA ROOKSTOOL, APPELLANT, v. CUDAHY PACKING COMPANY ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

158 N.W. 440

100 Neb. 118

ORA ROOKSTOOL, APPELLANT, v. CUDAHY PACKING COMPANY ET AL., APPELLEES. ^[*]

No. 18647

Supreme Court of Nebraska

June 23, 1916

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

Murphy & Winters, for appellant.

Gurley Woodrough & Fitch, contra.

HAMER J. SEDGWICK, J., not sitting. LETTON, J., concurring.

OPINION

HAMER, J.

This action was brought in the district court for Douglas county by the plaintiff, Ora Rookstool, through his next friend, his mother, Lillian Sheets, to recover damages claimed to have been sustained by him while he was in the employment of the Cudahy Packing Company. He was in the hog-killing department of the packing plant operated at the time of the injury in South Omaha. The plaintiff was 13 years of age. On the 22d day of May, 1910, after he had finished his day's work, he was about to leave the packing house. He stood at the entrance of the elevator shaft, intending to board the elevator for the purpose of leaving the plant. To find out the position of the elevator he looked into the elevator shaft, and it suddenly descended and struck him on the back of the head, tearing the top of his scalp loose and knocking out his teeth.

The above facts were set up in the plaintiff's petition. In its answer the defendant admitted that the plaintiff was in their employ, and that he had received an injury by thrusting a part of his body into the elevator shaft, but charged that the injury was caused by the negligent act of the plaintiff in placing part of his body within the elevator shaft so that the same was struck. A jury was impaneled and the evidence was taken; and at the conclusion the defendant moved the court to direct a verdict in favor of the defendant or discharge the jury, and to enter judgment for the defendant. This motion was sustained by the court, and the jury were discharged, and the cause was dismissed at the cost of the plaintiff. There was a motion for a new trial, plaintiff claiming that the decision was not sustained by sufficient evidence, that it was contrary to law, and for errors of law occurring at the trial, and because the court erred in discharging the jury and in rendering judgment for the defendant.

The testimony of the plaintiff was to the effect that he was injured while working in the killing department, breaking jaws and trimming pigs' feet; that he had been working at the packing house about six months when he was hurt; that he had had no other packing house experience. On the day he was hurt, at about half past 5 o'clock in the afternoon, he went up to the dressing room and changed his clothes, and stopped by the elevator and stood there, and then looked into the elevator shaft to see where the elevator was. He had used this same elevator almost every day. It was his means of leaving the plant. Besides knocking his teeth loose, his scalp was peeled up over his head. He was in the hospital nearly three weeks. During the time that he waited for the elevator and up to the time when he was struck there was no warning of any bell or gong, or warning of any kind. He had not been talked to about the danger of being around the elevator; he had not been warned against looking into the elevator shaft. While his head was in the elevator shaft down came the elevator from above. There was a bell on the floor where the plaintiff was, but the defendant did not ring it. The elevator was not supposed to move until the bell sounded.

The plaintiff testified: "No, sir; there wasn't no gong rang at all." It appears that no one instructed the plaintiff concerning the danger of being about the elevator. "Q. During the six weeks of your employment with the company, did any person, foreman, or subforeman say anything to you concerning the danger of being about and around the elevator? A. No, sir; they did not. Q. Did any foreman or subforeman caution you against looking into the elevator shaft? A. No, sir.

Clyde Hague, a witness for the plaintiff, testified that he worked in the same department with the plaintiff, and that he went with him to the elevator; that he never thought that the car would move without the bell rang beforehand.

The plaintiff's mother testified: "Ora was 13 years old, going to be 14 the 26th day of June, and he was hurt the 22d day of May. Q. What was his health prior to that injury? A. Why, he was a big, husky boy; he did a man's work; he was a lively boy and smart, and of course you can see the condition of him today." She further testified: "Well, since that injury, he is just sluggish, he can't work, that is all; he is a boy that can't work."

The defendant's motion for a directed verdict was based upon the contention that the plaintiff was guilty of contributory negligence, and that there was no negligence on the part of the defendant company. It is alleged that the court erred in holding that the defendant was not guilty of negligence. It is also alleged that the court erred in holding that the plaintiff was guilty of contributory negligence; also that the court erred in not sustaining the plaintiff's motion for a new trial; also that the court erred in sustaining defendant's motion for a directed verdict.

Under the statute, no child under the age of 14 years shall be employed, permitted or suffered to work in, or in connection with any theater, concert hall, mercantile institution, store, office, hotel, laundry, manufacturing establishment, bowling alley, passenger or freight elevators, factory or work shops, or as a messenger or driver therefor, within this state. Rev. St. 1913, sec. 3575 et seq.

Under section 3576, this inhibition as to the various employments mentioned in section 3575 is made to apply to children between 14 and 16 years of age, unless the person or corporation employing the child procures and keeps on file and accessible to the truant officers of the town or city, the state commissioner of labor, and his deputies, and the members of the state board of inspection, an employment certificate as prescribed by statute, and also keeps two complete lists of all such children employed therein, one on file and one conspicuously posted near the principal entrance of the building in which such children are employed.

If the employment of an infant under the age of 16 years, contrary to the provisions of the statute, is the direct cause of an injury to a child, his master is liable therefor.

In Hankins v. Reimers, 86 Neb. 307, 125 N.W. 516, it is held, as stated in the syllabus: "If the employment of an infant under the age of 16 years, contrary to the provisions of the statute, is the proximate cause of an injury to the child, his master is liable therefor." In that case it is stated in the petition that the deceased was under the age of 16 years at the time of his death; that he was ignorant of the dangers incident to the work in which he was employed, and that because of his immaturity he was incapable of appreciating the dangers attendant upon said work; that the defendant unlawfully, wrongfully and negligently directed said servant to work in a cave where the work was dangerous to life and limb. In the body of the opinion it is said: "If an infant is injured as the proximate result of engaging at his master's request in a vocation which the legislature has forbidden an infant of that age to follow, the master is liable." This court cited with approval: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 A. 642; Platt v. Southern Photo Material Co., 4 Ga.App. 159, 60 S.E. 1068; Starnes v. Albion Mfg. Co., 147 N.C. 556, 61 S.E. 525; Leathers v. Blackwell Durham Tobacco Co., 144 N.C. 330, 57 S.E. 11.

It is competent for the legislature in the exercise of the police power to fix an age below which children may not lawfully be employed in dangerous occupations. Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 A. 642; Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 69 A. 1116; Fortune v. Hall, 122 A.D. 250, 106 N.Y.S. 787, affirmed, 195 N.Y. 578, 89 N.E. 1100; Casteel v. Pittsburg Vitrified Paving & Building Brick Co., 83 Kan. 533, 112 P. 145; Strafford v. Republic Iron & Steel Co., 238 Ill. 371, 128 Am. St. Rep, 129, 87 N.E. 358; Inland Steel Co. v. Yedinak, 172 Ind. 423, 139 Am. St. Rep. 389, 87 N.E. 229; American Car & Foundry Co. v. Armentraut, 214 Ill. 509, 73 N.E. 766; Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671, 117 S.W. 280.

In a note to Louisville, H. & St. L. R. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971, in 48 L. R. A. n. s. 667, where the cases are collected, upon the question of the defense of contributory negligence where the plaintiff was a minor employed contrary to a child labor statute, it is said: "As shown in the earlier notes upon the subject presented by the title to the present note, there is considerable conflict of opinion. The same conflict is also shown in the later cases, although it may be said that the view is apparently growing that neither contributory negligence nor assumption of risk can be relied upon by the master as a defense to an action for injuries to a child who is employed under the statutory age."

In the case cited it is said in the body of the opinion: "The child, in accepting employment, does not knowingly violate any law or purposely do any wrong, but the employer does, and, between the two, the employer, for the benefit of the child, should bear all the burden, and the child none. In other words, the employer should be required so far as compensation can do it, to put the child in the same condition as he would have been except for the wrongful employment which caused his injury. We therefore hold that neither the doctrine relating to assumed risk or fellow servants or contributory negligence has...