69 Fla. 362 | Fla. | 1915
Lead Opinion
Robert B. Pritchard, was a minor fifteen years of age and was employed by the plaintiffs' in error in their shops in Jacksonville. While operátihg an electric drill or machine, Pritchard, was injured by having his left arm thrown into a belt, running from a revolving shaft overhead to a pulley connected with the machine or drill, which drew his arm between the belt 'add' wheel, fracturing and breaking the bones immediately above and involving the elbow joint. By his next friend John T. Pritchard, Robert. Pritchard brought suit against the plaintiffs in error to recover damages for the personal injury. .
The declaration contained three counts. The plaintiffs in error, hereafter called the defendants, demurred to the three counts of declaration. After the filing of the demurrer it was stipulated between the parties that an amended third count might be substituted and filed in the cause in place of the original third count, and that the demurrer to the original third count should stand and apply to the amended third count.
. Upon the hearing on the demurrer the court below sustained it as to the first count and overruled it as to the second and amended third counts. This order of the court constitutes the basis of the first assignment of error.
The amended third count alleges that said minor on said date, was “through the negligence of defendants, operating said machine or drill,” etc.; that the said minor, “through the negligence of said defendants had been operating same from time to time each day with said stick or similar object as above stated”; that when he was injured “he was by reason of his youth and inexperience too young to fully understand and appreciate the hazard and 'danger-of the employment in which he was engaged as aforesaid”; that on the day the injury occurred “Robert B. Pritchard through the negligence of said defendants was operating said machine in accordance with his, duty
The difference between the two counts is,- that in the s'econd it is alleged that the plaintiff had not been informed by his employers of the “exceedingly hazardous” nature of the operating of said machine by reason of its said defective condition,” while in the amended third count it is alleged that the plaintiff was “through the negligence' of defendants operating said machine or drill.” In both counts it is alleged that plaintiff was a minor, and by reason of his youth and inexperience too young to fully understand and appreciate the hazard and danger of the employment in which he was engaged. In both counts it is shown that the machine or drill was operated by a leather belt from a revolving shaft overhead, to a pulley connected with the machine; that the machine was defective and out of order in that it was unsteady and vibrated in a jerky manner when in operation; that the operation of the machine required the operator to use‘ a stick or some similar instrument to keep the belt on the wheel and make it lie flat there while' rapidiy turning; that this necessary manner of operating the machine on
The injury resulted to the plaintiff while trying to keep the belt flat on the wheel of the machine. Both counts affirmatively show the defect to have been perfectly obvious to the plaintiff.
A minor assumes the risk of all apparent dangers he is capable of comprehending and avoiding. Bare v. Crane Creek Coal & Coke Co., 61 W. Va. 28, 55 S. E. Rep. 907, 8 L. R. A. (N. S.) 284; Ritchie v. Krueger, 102 Ill. App. 654; Cohen v. Hamblin & Russell Mfg. Co., 186 Mass. 544, 71 N. E. Rep. 948; Carter v. Baldwin, 107 Mo. App. 217, 81 S. W. Rep. 204; Smith v. Irvin, 51 N. J. L. 507, 18 Atl. Rep. 852 ; 26 Cyc. 1220.
While the defect in the machine was apparent to the plaintiff it does not follow that the danger of using a wrench to control the belt on the wheel was apparent to him. Both counts allege that when the plaintiff was injured he was using a large wrench “thereby avoiding-touching said belt with his hands” and although it is perfectly legitimate to infer from this statement that the boy knew or appreciated the danger of touching the belt
In the Brand case, 64 Fla. 184, 59 South. Rep. 956, there was a plea to the declaration in which contributory negligence was offered as a defence, but the plea failed to allege that the plaintiff who was a minor was. of sufficient “age or understanding to appreciate any warning or danger communicated to him by language or appearance,” so a demurrer to the plea on this ground was sustained. The court said: “As a matter of fact an employe who is an inexperienced youth may not be free from fault when he is injured, yet in law his youth and inexperience may excuse his fault, and when the employer has placed him at
In employing a minor the duty devolves upon the employer to fully instruct such employe as to the dangers incident to the particular employment and in such cases the master is bound to consider the age, mentality and lack of capacity and experience of his infant employe and make such instructions so full and explicit as to bring the dangers incident to the employment to the complete comprehension of the minor. The theory seems to be that a minor presumably ignorant of the use of machinery or dangers incident to his occupation, or to risks incident to the use of defective machinery would without such instructions be exposed to those dangers which he could have avoided had his master fully discharged this duty. See Jones v. Florence Min. Co., 66 Wis. 268, 28 N. W. Rep. 207, 57 Am. Rep. 269; Buckley v. Gutta Percha & Rubber Manuf’g. Co., 113 N. Y. 540, 21 N. E. Rep. 717; Lebatt on Master and Servant; Shearman & Redfield on Negligence (5th ed.) section 219; 4 Thompson on Negligence, sections 3826, 4093, 4689; Dresser on Employers Liability, 466. Both counts of the declaration allege that the operation of the machine resuired the use of a stick or similar instrument to keep the belt on the wheel and
The second count alleges that the plaintiff was not informed by his employers of the “exceedingly hazardous nature of operating of said machine by reason of its defective condition.” This allegation taken in connection with the youth, inexperience and lack of appreciation of danger on the part of the minor, charges a breach of duty on the part of the employer toward his employe, while the third amended count rests upon the original
The second assignment of error rests upon the order of the court in sustaining the plaintiff’s demurrer to the defendants seventh, • eighth and ninth pleas, which were as follows:
“7 And for a seventh plea to each and every count severally of the plaintiff’s declaration, these defendants say:
That at the time and place of the plaintiff’s alleged injury in and about the shop of the said defendants, there existed a certain shop rule, well known to and understood by this plaintiff, to the effect that whenever anything became dis-arranged or disordered about any of the machines or engines operated by power, the defect, disorder or disarrangement should be reported, in order that the power might be shut off before attempting to remedy or correct such defect, disorder or disarrangement.
And defendants aver that at the time of the plaintiff’s alleged injury, he was of sufficient age and mental capacity to appreciate and understand the wisdom of such a shop rule, and the evil effects likely to arise from the violation or non-observance thereof.
And defendants aver that the plaintiff was guilty of contributory negligence which proximately caused his al
8. And for an eighth plea to each and every count severally of the plaintiff’s declaration, these defendants say that the plaintiff by his own negligence contributed proximately to the alleged injuries complained of, wherefore, the plaintiff should not demand or receive any compensation of or from the said defendants for his alleged injuries.
9. And for a ninth plea to each and every count severally of the plaintiff’s declaration these defendants say that the alleged injuries complained of were approximately caused by the plaintiff’s own negligence, wherefore the plaintiff should not demand or receive any compensation of or from said defendants for his alleged injuries.
The purpose of the rule mentioned in the seventh plea was obviously to secure to the defendants immediate in
If the purpose of the rule was to secure notice to the defendant of any disarrangement of the machinery, and the defendants’ foreman in charge of the shop knew of such disarrangement and had known it for a long time, and had also known of the plaintiff’s operating the machine with a stick on account of the defect in the machine for a long time before the injury, it would seem that the purpose of the rule was fully accomplished. But the question is did such knowledge on the part of the fore
The third assignment of error rests upon the ruling of the court sustaining the plaintiff’s objection to the following question propounded to him on cross-examination by defendant’s counsel: “Mr.- Pritchard, isn’t it a fact that on the way to the hospital with Mr. Valentine, you said to him that you knew you should have not attempted to shift the belt in the way you did?” This was a proper question under the case made in the evidence and its exclusion was reversible error. The plaintiff had testified that “In operating that machine and trying to shift the belt with the wrench I did not know I was in danger of being injured. I thought by using the wrench I was in perfect safety,” etc., and “while I worked there nobody told me that it was dangerous to shift the belt with a wrench or other object.” One of the vital issues in this case was whether the plaintiff was on account of his youth and inexperience ignorant of the danger incurred in operating the machine in its defective condition. The defect was obvious as has been shown. The plaintiff could see that
Here was a case in which the question of the plaintiff’s ignorance o fthe danger was paramount. His claim largely rests on the allegation that he was by reason of his youth and inexperience ignorance of and did not appreciate the danger incurred in operating the machine in its alleged defective condition. It was for the jury to determine from all the circumstances; the pláintiff’s age,
The fourth assignment is not well founded. The motion ¡is not confined to particular statements of the witness. It is very general in its character, and is directed to all the testimony of Pritchard as to the “instructions in the manner of operation of this press given irim by Fred Cooper.” Mr. Fred Cooper was foreman of the shop when the plaintiff went to work there, and was there for about three months after the plaintiff began to. work there. It was certainly proper for the witness to state if such was the fact, that the foreman told him, the witness, to use the wrench in the shop for that machine. This portion of the testimony was admissible. The motion was therefore properly overruled. Platt v. Rowand, 54 Fla. 237, 45 South. Rep. 32..
The fifth assignment of error rests uponsthe refusal of the court, upon the defendants* motion to strike the testimony of the witness Robert B. Pritchard, the plaintiff, “in regard to the actual happening of the accident.” The ground of the motion was that such testimony constituted a “variance from the allegations of both counts of the declaration.” This motion should have' been sustained.
It is settled law in this State that there can be no recovery upon a cause of action, even though it be a tort, however meritious it may be, or, however satisfactorily proved, that is in substance variant from that which is pleaded by the plaintiff. See Dexter v. Seaboard Air Line Ry., 55 Fla. 292, 45 South. Rep. 887; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318.
The allegations in the declaration as to the defect in the machine, having been set up so that it was unsteady and vibrated1 in a jerky manner when in operation, and that the belt was slack and could not be controlled by the belt shift are specifications of mere matters of detail concerning the condition of the machine; but the allegations that the “belt did not lie properly on the wheel of said "machine to operate same/1 but would turn on edge; and the “operation of same in its defective condition required that the operator use a stick or some similar instrument to keep the belt on said wheel and make the same lie flat thereon while rapidly turning” are material specifications relating to the instrumentalities by which the injury was inflicted. It appeal’s from the declaration that there was a pulley or wheel on the shaft which was connected with the machine, this pulley was fixed to the shaft and was turned by the belt to operate the machine, the shift was used for throwing the belt off and on the wheel. The idle pulley referred to in the evidence ivas another wheel on the shaft alongside the fixed pulley and was designed
The declaration showed that the plaintiff was aware of the danger of putting his hand on the belt while trying to make it lie flat on the wheel, and the wrench was used to avoid doing that. In shifting the belt he pressed the wrench against the back side of the belt with his hand around the side. A different position entirely from the one he would assume while using a stick or similar instrument to keep the belt flat on the main pulley while the machine was in operation. According to the plaintiff’s testimony he seemed to be doing the very thing
The sixth assignment of error is not well taken. It was competent for the witness to testify who was foreman of the shop while he worked there, it being shown that the period1 of his employment covered the time, or a portion of it, that the plaintiff was emloyed there. The objection was also extremely general. Vaughan’s Seed Store v. Stringfellow, 56 Fla. 708, 48 South. Rep. 410.
The seventh assignment is not well founded. The question was asked to elicit information as the basis upon which to estimate the damages.
The eighth assignment has no merit. There .was no objection made to the question, and no motion to strike the answer. The exclusion of the testimony of Dr. Turck as to the possibility of a third operation benefittin-g the plaintiff’s arm, we think, was improper. This testimony bore on the actual amount of damages caused by the injury, not in mitigation of damages, but as throwing some light upon the actual damage sustained. If a surgical operation would result in a cure, the actual damage would decrease in proportion as the operation was inexpensive, safe and certain. Schlitz Brewing Co. v. Duncan, 6 Kan. App. 178, 51 Pac. Rep. 310. The admission of the mortality tables was proper. There was evidence to show that the injury was permanent. City of Key West v. Baldwin, decided this term.
The refusal of the court to allow a view of the premises by the jury, and the exclusion of the testimony of a witness as to the present condition of the drill are assigned as error. No error is made to appear in these rul
The defendant asked the witness Valentine if from his observation of the plaintiff he thought the plaintiff was sensible enough to appreciate the danger of the work he was doing. The question was objected to and the court sustained the objection. This ruling is assigned as the thirteenth error. The ruling was correct, the question of the ability of the plaintiff to appreciate the danger and risks of his employment was for the jury to determine from the age, experience, mental development and conduct of the plaintiff. The opinion of a fellow workman as to another’s mental capacity for appreciating danger when that question is one within the distinctive province of the jury’s operation is improper. 17 Cyc. 45, See Chaires v. Brady, 10 Fla. 133.
• The fourteenth and fifteenth assignments are without merit. Valentine had testified that he informed Pritchard’s father that the boy was hurt, and Pritchard’s father said Valentine communicated with him over the telephone. The testimony of the plaintiff as to the whereabouts of Glandon when the injury occurred was proper rebuttal testimony. Glandon had testified that he was in the shop when the injury occurred, the plaintiff said1 he was not there. The mere fact that one witness contradicts another does not render the former’s testimony inadmissible on rebuttal.
Because of the errors mentioned heretofore the judgment in this cause will have to be reversed. It is therefore un
A claim in one of the charges given to the effect that the employer could not presume that his employe, a minor, knew even the ordinary risks and dangers of his employment, taken in connection, with the remainder of that charge, is a correct statement of the law. A minor old enough to understand and appreciate the risks of a rangerous employment must be deemed to assume those risks to the same extent as though he were an adult, if however he has not the mental capacity and experience to fully appreciate the dangers of the employment the master who fails to fully instruct such employe and bring to his mind an appreciation of the danger and risk is liable for an injury to the minor occasioned by his lack of intelligence or appreciation of the risks. The instructions given fully covered the case and considered together correctly announced the law.
For the errors pointed out herein the judgment is reversed and a new trial ordered.
Rehearing
A petition for rehearing was filed in this cause. It is urged by counsel for defendant in error that the third assignment of error was not well considered. Counsel say that the court overlooked and did not consider the fact that the witness Valentine, to whom the statements of Pritchard were supposed to have been made, was fully questioned and testified extensively and completely upon alleged admissions and the entire conversation between himself and the plaintiff on the way to the hospital after the injury. As to whether the court considered Valentine’s testimony as to the plaintiff’s admissions, we direct counsel’s attention to the following language in the opinion, which language counsel seem to have overlooked: “The fact that Valentine testified later to statements made by the plaintiff as to his knowledge of the danger that he had ‘made a mistake,’ or ‘had made a foolish move’ and the like, does not cure the error committed in excluding the question.” This court held that the question propounded to Pritchard, the plaintiff, by defendants’ counsel, and quoted in the opinion was a proper question and its exclusion reversible error, because the question sought to elicit from the plaintiff an admission to discredit his claim by showing a prior inconsistent utterance. The plaintiff by his declaration and in his testimony asserted that he was ignorant of the danger of his employment, this ignorance was a material element in the case made by the declaration as well as the one made by the plaintiff’s evidence. The question sought to elicit an admission from the plaintiff showing or tending
The next point urged in the petition for rehearing is, that the conclusion the court reached on the question of variance, was erroneous. The question was raised by a motion to strike the testimony of the witness Robert B. Pritchard, the plaintiff, “in regard to the actual happening of the accident, upon the ground that it is a variance from the allegations of both counts of the declaration.” The testimony of the witness as to the actual happening
We are still of the opinion, that the declaration shows the plaintiff to have appreciated the danger of bringing his hand in contact with the moving belt, and that “according to his testimony he seemed(to be doing the very thing which according to the declaration he tried to avoid, and of which he realized the danger.”
It is asserted in the petition that: “The belt around the side of which he (plaintiff) had his hand was the front part of the belt, leaving the machine, and was not the part of the belt which threw his arm into the machine.” The court understood from the record and the photographs of the machine, that the belt which operated it connected the machine with a revolving shaft overhead. That the power necessary to operate the machine was transmitted by means of the belt to a pulley connected with the machine; that the far side of the loop made by the belt came down to the machine and the side nearer the operator as he stood before the machine moved upward; that it was the far side of the belt loop which stood on edge and would not lie flat on the wheel. The declaration alleges that the operation of the machine required the operator to use a stick or similar instrument to “keep the belt on said wheel and make the same lie flat while rapidly turning,” and that
We think that what the witness said as to how the injury happened materially varied from what he had previously alleged in his declaration! The plaintiff had with great particularity and minuteness of details described in the declaration the tort and the means by which it was committed, he was therefore held to a corresponding degree of particularity in his proof necessary to sustain those allegations, his testimony was, we think, substantially variant from the allegations in his declaration,, and failed to sustain them. See Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71; Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 South. Rep. 959.
As to the ninth assignment of error: The declaration describes specifically, almost elaborately, the result of the injury and the surgical operations performed, and concludes the paragraph in the following words: “The said arm remained and still is, and always will be stiff and weak, and to a large extent useless and impairedDr. Turk, a witness for the plaintiff, said: “I think the arm is permanently injured, though another operation on the joint to remove a possible excess of new bone which forms after a fracture, might result in some further action in the elbow joint. Judging from previous similar operations, we have always obtained a certain amount of improvement after removing the excess of new bone growth
Petition denied.