107 Minn. 74 | Minn. | 1909
Lead Opinion
The action was for damages sustained by Victor L. Jacobson on April 19, 1906, while in the employ of the Merrill & Ring Mill Company. The appeal is from the judgment entered therein after the denial of the defendant’s motion for judgment in its favor notwithstanding the verdict. At the time of the accident Jacobson was fourteen years and nine months old, and had been employed by the mill company without a permit from the school superintendent, as required by section 1809, Ri L. 1905. Flis place of work was in the sawmill, where saws, shafts, pulleys, belt conveyors, and other machinery driven by steam were operated.
Jacobson was employed and put to work sorting lath which came down a sixteen-foot slide from a room overhead onto a table, from which they were gathered up, separated, and done up in bundles of fifty and then placed in a rack or kind of cradle, which formed a part of a machine which stood from seven to ten feet from the sorting table. The lath machine was operated by another boy. The cradle on which the bundles were placed was composed of two upright planks, the. top ends of which were hollowed out into semicircles. The bundles of lath were laid in these hollows, and the cradle was
The plaintiff alleged that the defendant was negligent (a) in employing a boy under sixteen years of age, in violation of section 1804, R. L. 1905, and (b) in failing to properly guard dangerous machinery, as required by sections 1813-1815, R. E. 1905. Upon the facts disclosed by the record the appellant was guilty of violating both of these statutes, and a .case of negligence was thereby made against it which rendered it liable for any damages sustained by the boy, while in the course of his employment, of which such negligence was the proximate cause, unless he is precluded from recovering because of his own contributing negligence or having assumed the risk. Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. 416; Bromberg v. Evans, 134 Iowa, 38, 111 N. W. 417 ; Fitzgerald v. International F. T. Co., 104 Minn. 138, 116 N. W. 475.
The appellant contends that the respondent, when injured, was doing nothing for his employer, that he was not doing what he was hired and told to do, that he was doing something that he knew he ought not to do, and that the statute applies only when the boy is injured by the failure to properly guard the machine at which he is required to work. While working in the mill the respondent was engaged in a dangerous occupation within the meaning of the statute. Perry v. Tozer, supra; Fitzgerald v. International F. T. Co., supra. Of course, this machine was not designed or intended to be used by employees as a place of rest; but a careful man who employs small boys might reasonably anticipate that they might make such use of anything that was at hand. We think it was something which might have been apprehended and provided against. Lane v. Atlantic, 111 Mass. 136; Hill v. Winsor, 118 Mass. 251; Marsh v. Great Northern, 101 Me. 489-502, 64 Atl. 844. Having failed to properly guard the machinery, the appellant was liable for the resulting damages, although it could not have reasonably anticipated that any one would be injured in the exact way in
A serious question in this case is whether the respondent was injured while in the course of his employment. Before there can be a recovery it must appear that the boy was at the time of the accident engaged in and about the work for which he had been employed, and not in something entirely foreign to it. He was employed and put to the work of counting and gathering up the lath from the table and placing the bundles on the lath machine cradle. He worked about the lath machine, as well as the table, for he had to deposit the bundles on the lath machine. Pie had been at work for four days. On the afternoon in question he had been rushed by the work, and, becoming tired, stepped over to the lath machine and sat down on the cross-bar of the buck to rest. In rising he slipped, and in some manner threw his arm against the saw. He does not give a very clear statement of what happened after he sat down; but the jury might well have believed that he was safe until the buck released and swung forward. There was ample evidence to show that the buck was not properly locked.
The questions of contributory negligence and assumption of risk were properly submitted to the jury. Manifestly the boy did not assume the risk. He had never been told not to sit on any part of the machinery, and on his own story he had inadequate knowledge of the dangers and conditions. The act of negligence charged is in sitting on the lath buck when he might have gone to some other place. But, unless he climbed onto the table where the lath was accumulating, there was no other place where he could sit down without going from fifteen to twenty feet away from his work, and there he could not have kept an eye on his work. Under such circumstances the boy, when he sat down to rest, was exercising the reasonable privilege of an employee, and in doing so he did not depart from the scope of his employment. He was not absent from his place of work, but was at the time engaged in the line of his duties and within the scope of his employment. These questions were at least for the jury to determine.
It is not claimed that he did anything to cause the cradle to move forward, unless it was by slipping on the wet refuse on the floor and
Judgment affirmed.
Dissenting Opinion
(dissenting).
The facts in this case have produced the conviction in my mind that the minor in this case was not injured while in the course of his employment. Therefore the order appealed from should have been reversed.
