66 Fla. 181 | Fla. | 1913
This case ivas tried by C. L. Wilson as Judge Ad Litem.
“For that whereas prior to the institution of this suit the said defendant was the owner of and engaged in the operation of a certain steam saw mill at Millville, in Washington county, Florida, for the manufacture of lumber, and the said defendant employed the plaintiff, a minor of the age of 14 years, to work at said mill and placed him to work in said mill in feeding staves to a certain stave edger in said mill situate, whicji said stave edger was a machine constructed for the purpose of edging staves by placing said staves into said machine which would carry said staves between two sets of circular saws which revolved horizontally when the said machine was being operated by means of certain bands attached to the wheel in and about said mill and which were driven or operated by means of the force of steam; that after the said stave had passed between the said saw they were caried away by means of a certain trip chain which was part of said machine. That the place in which the plaintiff was set to work by the defendant was a place of great danger of being injured, in which to place to work an inexperienced boy, as was the plaintiff, and there was great danger to inexperienced and immature workmen in said place of being injured by reason of the fact that the casing or shield which covered one set of said saws Avas broken, thereby leaving one set of said saws partially unencased and uncovered. That at the time of injury hereinafter complained of the plaintiff was a mere child, being about fourteen years old, and had had no experience in feeding of said stave edger or in
Wherefore plaintiff sues and alleges his damages by reason of the premises in the sum of Ten Thousand Dollars ($10,000.00).”
This declaration was demurred to on the grounds, in substance, first, it is not shown that plaintiff could not by looking have seen the revolving saw with which he brought his clothes in contact; second, that he was stupid, blind or otherwise infirm to know the danger of bringing his clothes in contact with the uncovered saw; third, it appears from the declaration plaintiff negligently contributed to the injury he received by not avoiding the danger which was obvious; fourth, the declaration is otherwise bad in substance. This demurrer was overruled, and this ruling is assigned as error.
It seems to us that the legal principles recognized by this court in Brand v. Atlantic Coast Line R. Co., 64 Fla. 184, 59 South. Rep. 956, are perfectly applicable to this case. It is there said on page 189. “As a matter of fact an employee 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 work the dangers and risks of which the youth does not appreciate, and the youth is injured because of the dangers of the work; the employer is liable. While a sufficient warning of an
The defendant corporation then filed four pleas, in substance, first, not guilty; second, that plaintiff was duly warned not to approach the uncovered saw, and informed of the danger of doing so, and notwithstanding he was sufficiently intelligent to understand and appreciate the danger of disregarding same, unnecessarily and negligently aproached so near the saw as to bring his clothes in contact therewith with the result he was injured; third, that he contributed directly to his own injury by his negligence with full knowledge that the saw was uncovered, and of the danger of approaching near thereto;
The evidence tended to shoAV that the plaintiff at the time of the injury Avas about lá years old; that he Avas put to Avork by the foreman of the mill of defendant, at a machine called a stave-edger, run by steam, belts, etc. The machine was on a table about eleven inches wide, upon AAdiich are íavo sets of saAvs, one each side. Avith a chain running betAveen them. A part of the casing covering the saAvs was broken exposing a saAv. The plaintiff had been Avorking about this machine about two days AAdien it became clogged with a staA’e, owing, as a Avifuess said, to some defect in the machine. The plaintiff testified that he was inexperienced in the use of. the machine, and that he was not warned of danger in using it. Lie also testified: “The chain would take one stave at a time. It held about ten; when I got hurt I Avas taking-out a stave which got hung and I went around to unloose it. I was standing just to the left of the table AAdien the stave got hung. Before I got hurt I did not know that the guard Avas broke. No one had ever cautioned me about it. No one in the employment of the German American Lumber Company warned me. I have never before worked for the defendant at a machine like that. At the time I got hurt I had been working there two or three days.” In his efforts to extricate the stave, the exposed saw caught his overalls, and very severely cut and injured him, cutting off a part of the hip bone, and made a wound from which his intestines protruded.
A physician testified that he thought the injury the
Mr. Brock testified for the defendant that he was foreman of the picket mill; that he put the plain tiff to work at the edging machine; that plaintiff observed the broken shield over the saw, and witness told him to be careful until he could get it fixed. Witness admitted that he told plaintiff’s father the night after the accident if the machine had been fixed it would not have occurred. It does not appear how long the shield over the saw had been broken. This witness’ testimony tends to show that if the boy had been careful he would not have been injured.
There is no testimony that the plaintiff was unusually intelligent, prudent and experienced for one of his age.
Two instructions were requested and refused, and the rulings on them are assigned as error. They seem to embody correct general propositions of law applicable to an experienced adult, but we do not think they were so applicable to the case of an inexperienced youth of fourteen as to make the ruling of the trial judge harmful error.
The trial judge charged the jury as follows: “The first plea is a plea simply of general issue. Under the plea I charge you that before you can find a verdict in favor of the plaintiff you must believe that the plaintiff has made a case by the preponderance of the evidence. Under the second, third and fourth pleas, which are pleas setting up contributory .negligence on the part of the plaintiff and assumption of risk on the part of the plaintiff, the burden of proving those pleas is upon the defendant setting up the pleas, and' in order to find a verdict in favor of the defendant under either the second, third or
It is contended here that the charge is erroneous because the second plea is not a plea of contributory negligence or assumed risk, but contains nothing more than could be shown under the plea of not guilty. It seems to us that the effect of this plea was to set up contributory negligence on the part of the plaintiff, for it is not a “denial only of the breach of duty or the wrongful act alleged to have been committed by the defendant.” See Rule 71 of the Rules of Practice in Common Law Actions. We discover no reversible error under this assignment.
The next assignment which is presented questions the correctness of a portion of the Judge’s charge which is in these words: “In other words, if you find that the plaintiff has been permanently injured, and from the evidence find that he is prevented from performing labor from injuries permanent, and you should find for the plaintiff, then it would be your duty to ascertain the amount and value of the damage to him based on The American Mortality Tables.” In a previous portion of the charge the Judge had instructed the jury if they found for the plaintiff they must reduce the damages to their present value. There was no evidence tending to show that the ordinary expectancy of life of plaintiff, as shown by the mortality tables referred to would be affected by the nature of his injuries, by his habits, or by any other circumstance. If there had been any such evidence, doubtless the language of the charge which is objected to would have been erroneous as tending to
The judgment below is affirmed.