Rossi v. Ronci

• Decision Date: 06 December 1937
• Docket Number: No. 7821.,7821.
• Citation: 195 A. 401
• Parties: ROSSI v. RONCI.
• Court: Rhode Island Supreme Court

195 A. 401

ROSSI

v. RONCI.

No. 7821.

Supreme Court of Rhode Island.

Dec. 6, 1937.

Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.

Action on the case by Julio Rossi, p. a., against Valentino Ronci. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained, and case remitted for new trial.

Peter L. Cannon and O'Shaunessy & Cannon, all of Providence, for plaintiff. Henry M. Boss, of Providence, for defendant.

MOSS, Justice.

This is an action on the case, brought by the plaintiff, a minor, by his father as next friend, to recover damages for injuries which were received by the plaintiff on April 28, 1934, when he was only 15 years old and was employed by the defendant in the latter's bakery, by having his left hand and forearm caught in a moving dough-rolling machine, and which necessitated the amputation of the injured arm.

The case was tried before a jury in the superior court on a second amended declaration of 4 counts; and the trial resulted in a verdict for the plaintiff for $7,500. A motion by the defendant for a new trial was denied by the trial justice, and the case was then brought to this court by the defendant on a bill of exceptions, in which are set forth 23 exceptions. Of these, 11 were not relied upon before us and must be taken to have been abandoned. These are exceptions 3, 4, 7, 9, 10, 17, 18, 19, 20, 21, and 23, which is to the denial of the defendant's motion for a new trial. Some of the others have not been very strongly insisted upon before us.

Exception 10, which is one of those abandoned, was to that part of the charge of the trial justice to the jury wherein he told them that at least six men were employed in the defendant's business and that the plaintiff was one of them. We must then, in deciding issues presented and insisted upon before us by the defendant, assume that that part of the charge was correct. It is admitted that the defendant had not taken the necessary steps to bring himself and his employees within the general terms of the Workmen's Compensation Act (Gen.Laws 1923, c. 92, art. 1 et seq., § 1 et seq., as amended). Therefore, he was subject to actions at common law for injuries suffered by them in the course of their employment and was deprived of the benefit of the defenses based on contributory negligence, the fellow-servant rule, and the assumption of risk doctrine.

Of the 4 counts of the declaration on which the case was tried, the first is based on the alleged breach by the defendant of a statute forbidding the employment of any minor, under the age of 16 years in any business dangerous to the life or limb of such minor, the alleged breach consisting of employing the plaintiff as an operator of and cleaning a dough-rolling machine. It was alleged that, while the plaintiff was working on and cleaning this machine, his left hand and forearm were caught in it while it was in motion, and severely injured, necessitating amputation.

The second of these counts is based on the alleged breach by the defendant of a certain statute (section 35 of G.L.1923, chapter 85, as added by P.L.1928; c. 1231, § 1), limiting to 48 the number of hours for which any child under the age of 16 years could be employed or permitted to work in any factory, manufacturing, mechanical, business, or mercantile establishment in this state in any week, the alleged breach consisting of employing and permitting the plaintiff to work in the bakery, as an operator of a dough-rolling machine and in cleaning it, for a number of hours each week exceeding the limit. It was alleged that, while he was so working and in consequence of his being thus overworked, he was injured as above described.

The third of these counts is based on the alleged breach by the defendant of his duty to give proper instructions to the plaintiff as to the operation of the machine before the plaintiff worked on it, the alleged breach by the defendant consisting of negligently directing and advising the plaintiff to wrap around his left hand certain bandages and wrappings, which interfered with the free use of the plaintiff's left hand in controlling and cleaning the machine, in consequence of which wrappings, his left hand and arm, while he was working on the machine and it was in motion, were caught and injured in the manner above stated.

The fourth of the counts is almost the same as the third, except that emphasis is laid on the alleged failure to explain to the plaintiff the danger of operating and cleaning the machine.

One of the exceptions principally relied upon by the defendant before us is the sixth, which was taken by him to the ruling of the trial justice denying the defendant's motion, made at the conclusion of the evidence, that the second of the above counts, which, as above stated, was based on an alleged breach by the defendant of a statute limiting the hours of labor for a child under 16 years of age, be withdrawn from the consideration of the jury. The ground for the motion was that it did not appear from the evidence that the accident to the plaintiff occurred by reason of a violation of that statute.

The testimony for the respective parties was in irreconcilable conflict on the question whether the plaintiff, at the time of the accident, was being employed by the defendant for more hours per week than the statute permitted for a minor of his age. But there was such evidence for the jury, in favor of the plaintiff on this question, that we must assume, for the purposes of passing on this exception, that he was then being so employed.

We are inclined to the opinion that the fact that an employee, when injured in the course of his employment, is being employed in violation of a statute limiting the number of hours per week for which he can legally be employed, is at least an element to be considered by a jury in determining whether the employer is liable to the employee for the latter's injuries. But, in our opinion, an employer cannot legally be held liable to an employee by reason of the violation, by the employer, of such a statute, unless it is further proved that such violation was a proximate cause of the employee's injuries. St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U.S. 265, 33 S.Ct. 858, 57 L.Ed. 1179; Atchison, Topeka & S. F. R. Co. v. Swearingen, 239 U. S. 339, 36 S.Ct. 121, 60 L.Ed. 317; Bjornsen v. Northern Pacific R. Co., 84 Wash. 220, 146 P. 575. See, also, note in Ann. Cas.1915D, 449, to report of Osborne's Adm'r v. Cincinnati, New Orleans & T. P. R. Co., 158 Ky. 176, 164 S.W. 818.

In the first of these cases the action was for the death of an employee of the defendant corporation by an accident which occurred from the hazards of his employment and when he was working beyond the limit of 16 consecutive hours fixed by the federal statute. The Court of Appeals of Kentucky, in 145 Ky. 427, 140 S.W. 672, in sustaining a verdict for the administrator of his estate, ruled that the effect of the statute was to create an unconditional liability for all accidents occurring beyond the statutory period, irrespective of proof showing a connection between the accident and working overtime. The Supreme Court of the United States reversed the decision because there was no proof of a causal connection between the permitting of the working beyond the statutory time and the happening of the accident.

At page 280 of 229 U.S., page 864 of 33 S.Ct., the court says: "In giving to the statute the construction above stated, we think error was committed. The hours of service act was approved March 4, 1907, and is entitled, 'An Act to Promote the Safety of Employes and Travelers upon Railroads by Limiting the Hours of Service of Employes Thereon.' Chap. 2939, 34 Stat. at L. 1415, U.S.Comp.Stat.Supp.1911. p. 1321 [45 U.S.C.A. § 61 et seq.]. We are unable to discover in the text of the statute any support for the conclusion that it was the purpose of Congress in adopting it to subject carriers to the...