59 W. Va. 688 | W. Va. | 1906
Arthur Gr. Comer, a boy between thirteen and fourteen years of age, while in the employ of W. M. Ritter Lumber Company, at a saw mill, was injured by a fragment of the cylinder head of a steam saw mill striking his foot, so injuring three of the toes that a part of his foot had to be amputated. The claim of the plaintiff for recovery is, that the
One question in the case is this. The plaintiff gave evidence over objection to prove that the company had not given instruction to Comer for his safety under the law which requires such instruction in the case of an infant employee. After this evidence was given the plaintiff moved the court to exclude the question and the answer, but the defendant objected to their exclusion. We are of the opinion, that this point is untenable. ‘‘The appellant must be consistent, and if he asks the court below to make a specific ruling, or to proceed in a certain manner, he cannot complain in an appellate court that the ruling or action is erroneous. He has invited the error and must accept its results, and the appellate court will not reverse a judgment at his instance on account of it.” 2 Ency. Pl. & Prac. 519.
Another point is, that several witnesses were allowed to express their opinions to the effect that the operation of that mill or cylinder head, piston rod and bracket was dangerous without protection, meaning some barrier erected to prevent the cylinder head, in case of its blowing out, from flying out and injuring the workmen. The point of this objection is, that this was a subject upon which mere opinion evidence .could not be given, but was provable by evidence of facts. In response to this it may be said that the construction and operation of machinery involves technical matters. The witnesses giving this evidence were experienced in the construction and operation of mills, had helped to construct them and operate them, had helped construct this one, and knew much of this mill from personal experience. We think their 'evidence was admissible. They also stated facts in connection with their opinions touching this mill.
Defendant complains of an instruction given by the court that, “the plaintiff in his action is entitled to recovery, he may recover the value of his time lost during his cure and a fair compensation for his physical and mental suffering caused by the injury, as well as any permanent reduction of his power to earn money.” We think this instruction plainly erroneous. It gave .the plaintiff recovery of damages from the time of the boy’s injury for more than seven years of his minority for loss of service. As appears in Halliday v. Miller, 29 W. Va. 431, and Trapnel v. Conklyn, 37 Id. 253, the father is entitled to the son’s services until his majority. All the books say so. Thompson on Neg., section 7310. 8 Am. & Eng. Ene. L. (2nd Ed.) 651, states that the minor cannot recover as an element of damages for the loss of time during minority. Clearly so, because the father owns the service of the child. Action for loss of service up to majority must be in the name of the father. Counsel for the plaintiff does not deny this legal proposition, but he would meet it by saying that as the father brought this suit as next friend, he is estopped from himself bringing another suit to recover damages for loss of service of his son during minority. We think that the Ency. PI. & Prac., vol. 14, 999, will not sustain this position. True, the case of Barker v. Flint, 91 Mich. 298, mentioned in the Encyclopedia might seem, only seem, to support that view. It says that when a father sues as next friend for his son, and recovers damages, a suit in his own name to recover for loss of service would be barred. That is plainly so, because he obtains a recovery in
It follows that we must reverse the judgment, and set aside the verdict and grant a new trial.
Reversed.