115 Cal. 184 | Cal. | 1896
This is an action for damages for personal injuries by a minor against his employer. Plaintiff recovered a judgment under the verdict of the jury, and defendant appeals from the judgment and from the order denying his motion for a new trial. He also appeals from the order taxing costs, and denying his motion to vacate the judgment.
Plaintiff, at the time of the accident, was fourteen years and four months old. He had been working in the shop of the defendant for fourteen months; and for four months immediately preceding the accident he had been engaged in punching horseshoes with a punching machine. The complaint avers that plaintiff was employed by defendant to punch holes in horseshoes by means of a machine known as a horseshoe punching machine; that at- all times during his employment he
Defendant contended that the accident resulted from the plaintiff’s own negligence, and from the negligence of plaintiff’s fellow employee, the assistant foreman.
The punching machine was moved by a belt. When it was desired to stop the machine the belt was thrown from the tight pulley to a loose pulley. The belt was so defectively constructed that one end of it at the place of juncture projected. By constant striking upon this projecting end the belt would work back from the loose pulley on to the tight pulley, and so set the machine in motion. This defect was known to the plaintiff, and had by him been reported to Rodifer, the assistant foreman, who told the boy, “ That would be all right; that would not hurt nothing.” The shifter used in moving the belt from the fixed to the loose pulley was likewise defective, and its condition tended also to cause the belt to move back upon the fixed pulley without the intervention of an operative.
Upon the day in question the boy’s machine was at rest. A tap bolt which had fallen out from the box holding the shaft wheels at the rear of the machine was taken by Foley to Rodifer. Rodifer directed the boy to
It is, perhaps, proper to say that this statement presents the testimony in alight most favorable to plaintiff. Nevertheless, it is a statement borne out by the testimony, and from their verdict it is the view which the jury must have accepted.
From this statement appellant urges that it appears that plaintiff, by his own testimony, knew the special danger and risk which, because of the defective appliance, must have attended the working of the machine, and that, having this knowledge, and his injury having resulted from this known defect, he stood as an adult with respect to his master’s liability for any injury arising from it, and cannot recover; that he undertook to screw the nut upon the machine while it was in the condition which he himself considered and testified to as dangerous.
Where the ordinary and usual occupation of a minor is the running or management of a machine, or is some employment in and about it, and the minor is shown to have knowledge of the working of the machine, its dangers or its defects, and where it further appears that the minor is not of such tender years as to be unable to appreciate the nature of the dangers or defects, it is beyond question the rule, sanctioned by a long line of authority, that he takes upon himself, as will an adult under- the same circumstances, the perils and risks of his employment; and that, if injured in the course thereof, he may not look to his employer for compensation.
• But there is a distinction which, as a matter of humanity as well as law, should be drawn between such cases and those where the minor is put to a task which,
‘ But the accident did not occur while he was engaged in his ordinary occupation at the machine. It occurred while he was engaged in the unusual task set him, that of screwing on a fallen bolt. It is true that while engaged in this task he had still the knowledge that the machine was liable to start, but does this fact establish that for which appellant contends, viz., that he had assumed that particular risk while screwing on the nut, as he had assumed it generally in operating the machine?
We think that as a proposition of law this cannot be said. Were the employee in this case an adult, the rule might well be different; but the very reason why an adult under these circumstances would be held to have taken the risk while screwing on the nut, serves to show the injustice and hardship which would result if it were sought to be applied to a minor. The question of the taking of a risk, the question of the assumption of responsibility in a given act, is determined as much upon the matter of judgment as upon the matter of knowledge. An adult employee, when the facts are known to him, is presumed in law to exercise the same judgment upon those facts as would the employer. The employer’s duty is fulfilled, and he is not negligent, if he puts the employee in full possession of the facts, and makes him acquainted with the attendant dangers and risks. Therefore, if an adult employee engaged in operating the punching machine, and knowing that it was lia
When sent out to labor they are told by their parents or guardians to obey. In the factory or shop unquestioning obedience is expected and exacted. They must go where they are sent, they must do as they are told.
It would be barbarous to hold them to the same accountability as is held the adult employee who is an independent free agent. Their conduct is to be judged in accordance with the limited knowledge, experience, and judgment which they possess when called upon to act. And it must, from the nature of the case, be a question of fact for the jury rather than of law for the court, to say whether or not, in the performance of a given task, the child duly exercised such judgment as he possessed, taking into consideration his years, his experience, and his ability. This must necessarily give rise to a different rule from that so well established, which
So here the child might well be expected to comprehend the likelihood of accident, and to know how to provide against it, when engaged in his usual employment in front of the machine. But when he is sent to> the rear of it, and in among the wheels and mechanism, to perform a novel duty, we cannot say, as matter of law, that he entered upon its performance .with a full appreciation of the increased dangers and risks, and with sufficient judgment to know how to avoid them. These matters, and the further question whether the minor duly exercised such judgment as he possessed, must, therefore, as a rule, be left as considerations of fact for the jury’s determination; and it would be an exceptional case which would present them as unmixed questions of law for the determination of the court.
In this case, it is true, the boy knew when he was engaged in screwing on the nut that the machine might start, but it does not appear that he knew or had judgment to appreciate any added risk which the particular task rendered him liable to. The ordinary care which a child of limited judgment and experience is called upon to exercise in a given act is not the same quantum of care which the adult would be called upon to use under the same circumstances. Each is required to use ordinary care, but the amount of care which the person of perfected intelligence and judgment must employ, is very different from the amount which the law in its humanity exacts of a minor.
It is well sáid by the supreme court of appeals of West Virginia in Turner v. Norfolk etc. Ry. Co., 40 W. Va. 675: “A minor cannot be expected to set up his opinion, however mature, against the judgment and experience of those maturer and older to whom he is given in charge, but he is taught the lesson of obedience from his cradle, and he is required to respect the commands, and pay deference to the judgment of his elders,
We cannot say, therefore, as matter of law, either that the child with knowledge assumed the risks incident to the task, or that in performing thetask he exercised less than the ordinary care required of him.
It is next insisted that plaintiff was injured because of the negligence of the fellow-servant, Rodifer, and that for this reason plaintiff cannot recover. The case of Fisk v. Central Pac. R. R. Co., 72 Cal. 38, 1 Am. St. Rep. 22, is here relied upon; but in the Fisk case the boy had been put to work in the toolroom, and under the directions of the boss of that room. In excess of his authority the boss of that room sent him into another part and department of the shops, there to work, and it was there the boy was injured. It is said : “ He was a boss in the toolroom, and as such we may fairly assume he was authorized to control and direct the manner in which the work of that room was to be performed, and all things relating to the order and proper conduct of his branch of the business.....The employment to work in the tool shop was the subject matter, and the control given to Snape and the directions to plaintiff to obey him must be construed with reference to and confined to such subject matter.”
In the case at bar the plaintiff pleads and shows that, in the performance of his duties in defendant’s factory, he was under the control of and subject to the orders and directions of defendant’s assistant foreman, Rodifer. It was in pursuance of Rodifer’s order, within the scope of his authority, that plaintiff was injured.
In the case of Mullin v. California Horseshoe Co., 105 Cal. 77, the machinist Brunig had general supervision of the boys, and gave them orders and instructions. He put the plaintiff to work as a press boy, and directed him generally about his work until he was
We will not say, under these circumstances, that, between Bodifer in control of the work, and the boy subject to his orders, the relation of fellow-servant existed so as to relieve the employer of liability.
Certain instructions given by the court at plaintiff’s request are complained of. One will serve as an example for all. It is as follows: “ The owners of dangerous machinery, who employ a minor and inexperienced person about it, unacquainted with its nature and use, are bound to take care that such person is duly instructed therein, and, if they either neglect this, or if express directions are given to use the machinery in a manner which must lead to danger, of which such person is not likely to be fully aware, they are liable for any injury sustained by such person in the use of the machinery in that manner. The law is not so unreasonable as to expect or require the same maturity of judgment, or the same degree of care or circumspection, in a child of tender years as in an adult.”
It is claimed that this instruction is erroneous, in assuming as a fact that the machinery was dangerous; but it is spoken of as a dangerous machine, not because of the claimed defect in the belt and shifter, but because, as a matter of common knowledge, any machine operated by a swiftly moving belt, and containing as parts of its mechanism pulleys and cogs, and used for punching holes in iron, is in and of itself a dangerous machine. The proposition of law is unassailable.
The complaint averred the appointment of a guardian ad litem, and this averment was traversed by the answer. Upon the trial, when plaintiff undertook to make proof of such appointment, the court held the proof to be insufficient, and the appointment void, but permitted plaintiff, over the objection of defendant, to file a new petition, and then and there made its order appointing a guardian ad litem, and ordered the trial to proceed.
Plaintiff filed a cost bill in the sum of three hundred and fourteen dollars, and the clerk, without awaiting the determination of defendant’s motion to tax costs, entered a judgment for the sum claimed. Defendant moved to vacate the judgment. The court disallowed twenty-two dollars of plaintiff’s bill, and allowed costs in the sum of two hundred and ninety-two dollars, and likewise ordered the amount of costs specified in the judgment to be reduced to this amount.
The amount of costs allowed being less than three hundred dollars, the action of the trial court in the matter is not reviewable upon appeal. (Fairbanks v. Lambkin, 99 Cal. 429.) The clerk’s error in entering the judgment for costs was cured' by the order of the court reducing the amount, and the refusal to vacate the judgment could have worked no injury to appellant.
The judgment and order appealed from are affirmed, as is also the order of the court refusing to vacate the judgment. The separate appeal from the order taxing costs is dismissed.
McFarland, J., and Temple, J., concurred.