112 P. 439 | Mont. | 1910
delivered the opinion of the court.
This is the second appeal in this case. (See Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843.) The complaint has been amended and a retrial had, resulting in a verdict against both defendants in the sum of $10,000. From a judgment entered on the verdict and an order denying a new trial, they have appealed.
The amended complaint, after alleging the plaintiff’s age, thirteen years, continues as follows:
“(4) That among the duties of plaintiff’s said employment he was required to throw said pug-mill in and out of gear and to oil the same, and he was likewise directed by his said employers, and it was then and there a part of his duty, to take a certain hose used in connection with said machine and to turn water upon the clay which was being fed through the same and to feel of said clay as it was emerging from said machine to ascertain the degree of moisture therein.
“(5) That said pug-mill was a complicated piece of machinery and at its mouth, where said clay emerged, there were two cutting knives revolving upon a cylinder or rod which in their revolution upward and at the top passed into a metal frame whose sides came very close to said knives, and because thereof
“(6) That plaintiff was in fact wholly inexperienced in the use of said mill and was without experience in the use of any machinery and did not in fact know, and by reason of his youth and inexperience in the use of machinery could not have reasonably known, of the danger incident to feeling said clay with one hand and wetting the same with the water from the hose held in his other hand, and in the manner aforesaid, but that defendant either knew, or in the exercise of reasonable care ought to have known, of the said inexperience of plaintiff and his need of instruction as to said danger, and it then and there became and was the duty of defendants, and each of them, to use reasonable care to give this plaintiff such instruction in regard to the performance of said duties as would have enabled him to sense and avoid said dangers, but that this they negligently, carelessly, and wholly failed to do.”
“ (8) That on August 16, 1906, and while in the obedience of said direction of defendants, plaintiff was feeling of said clay as it emerged from said mill with his right hand and at the same time holding said hose in his left hand and therewith wetting the said clay, and while he was in ignorance of the danger connected with said operation, and so without instruction as to said danger by -reason of the negligence of said defendants, and without any intention on the part of plaintiff so to do, his left hand then holding said hose was carried forward to and against one of said knives in its- upward motion and carried upward and against said metal frame,” in consequence whereof he was injured. There was no demurrer to the amended complaint, but at the commencement of the trial the objection was made that it did not state facts sufficient to constitute a cause of action.
1. This court held on the former appeal that the evidence was insufficient to warrant a finding that the defendant Slater Brick Company was negligent in failing to guard the knives or in -furnishing a defective hose. We held, also, that in cases like this
As was said by the court on the former appeal, and the remark may be applied to the allegations of the complaint as well as to-the testimony: ‘ ‘ The boy was obeying orders, and it was for the jury to determine whether the defendant was chargeable with want of ordinary care in not apprehending that he would probably attempt to do both acts at the same time and not instructing him accordingly.” The complaint alleges that plaintiff was; directed to use the hose; to turn water upon the clay and feel it as it emerged from the machine; that there was danger “in the-operation aforesaid of watering and feeling said clay as the same-emerged from the .mill”; that the defendants knew of the need of instructions as to said danger, and it was their duty “to use
2. It is contended that the evidence is insufficient to sustain the verdict. The plaintiff testified as follows: “When I was hurt, I was throwing water on the clay and feeling whether it was moist enough or not. I was on my knees at the mouth of the machine, throwing water in. ’ I was down about like this [indicating] with my hand up here with a piece of hose throwing water, and this hand catching the mud as it fell out, to see whether it was moist enough; down on my right knee here, with the left hand upon the machine, my right hand about a foot from the bottom of the tub, about center-ways from the hole through which the clay came, about six inches from the opening at the end of the tub, I should judge. My left hand was about six inches from the knives, toward myself, as I was leaning. I had the nozzle in my hand. It was made of brass. I could not say how long it was exactly; I should judge it would be about six or eight inches long. I was holding at the back end of the nozzle; I could not say how long before I was hurt. There was water coming from the hose at the time, going just inside the mouth of the tub. The water was regulated by a stem on the valve at the back end of it and the end of the nozzle was fastened to the hose. I was throwing water inside the machine and the pressure of the water suddenly forced them ahead and jerked my hand in the knives, and got them crushed.”
In the former decision, in considering whether the court erred in excluding the evidence of witnesses who were prepared to testify that in the course of their experience they never heard of an accident happening as this one is alleged to have happened, this court said that the happening of the accident as narrated by the plaintiff was. a wholly fortuitous event, the occurring of which in the exact manner told by the boy could not be anticipated. It is now said that the court held that the testimony was
Again, it is contended that the evidence fails to show that the injury was eaused by the negligence charged. The following cases are cited to sustain the contention: Buckley v. Gutta-Percha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717; Fronk v. Evans City Steam Laundry, 70 Neb. 75, 96 N. W. 1053; Siddall v. Pacific Mills, 162 Mass. 378, 38 N. E. 969; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286. In each of these cases the court was unable to determine that any warning which might have been given would have prevented the accident; while in the case at bar, as we have pointed out in considering the complaint, the jury could properly find that certain warnings might have been effective for that purpose.
Again, it is claimed that plaintiff was properly instructed by the superintendent, Bonnett. It is said that Bonnett’s testimony is uneontradicted, but we cannot assent to this conclusion. Plaintiff testified, as we understand the record, that Bonnett told him to “catch the clay as it left the machine, after it had fallen out of the machine; catch it and feel it and see if it was moist enough or not.” Bonnett testified as hereinbefore set forth, and he also said: “I instructed him how to do that work, and where to stand when doing it. I told him to stand about two-thirds back from the end and throw on a good bit on the clay, and sometimes he could reach the valve and stop the water and do a great deal more than take care of the water. There was no danger connected with the operation of the machine in that way, in the way I told him, if he carried out the instructions I gave him.
While the witness C. P. Slater Was on the stand he was asked this question on direct examination: “State whether or not in your judgment as a brickmaker, based upon your experience with this particular machine, it would be dangerous or otherwise for an inexperienced boy thirteen years of age, of ordinary intelligence, who had never worked with a machine of this kind before, and had no experience whatever with machinery, to be employed in tempering clay in a pug-mill of this character, watering the clay with a hose and feeling of it with his hands to determine the moisture 2 ” The question was objected to, but not for the reason urged against it in this court. Under these circumstances, we cannot consider the specification of error. (Smith v. City of Butte, 40 Mont. 445, 107 Pac. 409; Butte Northern Copper Co. v. Radmilovich, 39 Mont. 157, 101 Pac. 1078; Thornton-Thomas Mer. Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10.)
It is contended that the court erred in sustaining an objection to the following question propounded to the defendants’ witness Bray, viz.: “Have you ever known or heard of an accident occurring in the manner testified to by the plaintiff in this case 2 ” No
Defendants’ witness Page testified that at times the plaintiff did not pay strict attention to his work. He then testified, over objection: “He was making and throwing mud balls occasionally and throwing water with the nozzle once in a while toward the men. He threw mud balls about three times that day, possibly an hour or two before the accident.” This testimony was afterward stricken out on the ground that no causal connection was shown between the act of throwing mud balls and the injury. We think the ruling was correct.
The court instructed the jury as follows: “Though the danger be obvious and such as an operator of ordinary intelligence and experience would perceive, yet when a child is put to work and his age and experience require it, the employer must see not only that he has notice of the danger, but also that he is sufficiently instructed as to the way in which he should do the work so as to avoid the danger. And the master cannot relieve himself of this duty by delegating it to either a foreman or to anyone else; but must himself see to it that it is in fact done. Nor can he assume that a boy of tender years is experienced with machinery. His age is a notice and requires the master to inquire as to the child’s capacity and experience.” It is contended that by this instruction the court told the jury that the master must personally warn and instruct the inexperienced servant. When the trial judge proposed to give the instruction which was offered by the plaintiff, it was objected to in its entirety, “for the reason that it imposes too great a burden upon the employer or master in regard to duty resting upon him to instruct or warn the minor.” The objection may apply as well to the whole instruction as to that particular portion which is now subjected to criticism. Indeed, the phraseology seems to indicate that it was intended to apply to the portion relating to the master’s general
It is claimed that the verdict is so excessive as to evince passion and prejudice on the part of the jury. We do not think so. We are of opinion, however, that the verdict is excessive. In Lewis v. Northern Pacific Ry. Co., 36 Mont. 207, 92 Pac. 469, this court refused to disturb a judgment for a like amount. In that ease the plaintiff lost his left hand. This plaintiff, however, is far from being injured to that extent. He testified: “I went to the hospital and stayed there a little over a week. I suffered pain in my hand and to my shoulder. I went home from the hospital. It was about six weeks or maybe longer before my hand healed up. It pained me quite a bit. I could not sleep at all hardly. When it healed up, I found it was very weak. I could not stand much work. I didn’t have the use of my fingers. The little finger and the next one to it were not available for use. I carry one finger bent, because it drawed that way when it healed up; can’t straighten it out. I have the use of the first and second fingers and the thumb on this hand. Sometimes pain runs through it on the motion of it. Heat and cold bothers the whole hand. Cold hurts it quite a bit while it is getting warm; it hurts the fingers and through the hand; won’t stand hardly any pressure at all. Haven’t noticed any improvement in that respect in the lapse of time; bothers me sometimes. The pains extend up to the shoulder. My folks are farming now. About all I could do was to handle the hoe some; that bothered my hand quite a bit and made it sore. I have done some work with my father on the farm; hoeing is about the only thing I can do. I have done other work, small, light work.”
Dr. Watkins testified: “The skin was tom back of the ring and little finger; the whole thing torn and laid backwards;
As every case must necessarily be decided in the light of its own facts, it would serve no useful purpose to encumber this opinion with a citation of authorities on the question of excessive verdicts. This plaintiff has suffered pain, and the usefulness of one—perhaps two—of his fingers is impaired. Whether the injury will permanently affect his ability to use the fingers, we do not know. We recall several cases in this court wherein medical men testified that time will minimize the effect of such an injury. The hurt received is apparently healed. No fingers are lost. We are of opinion that the sum of $4,000 will amplycompensate the plaintiff; and, indeed, this sum is a large one under the circumstances.
The cause is remanded to the district court of Yellowstone county, with directions to grant a new trial, unless within thirty days after the remittitur is filed with the clerk of that court, the respondent shall file his written consent that the judgment