Molaske v. Ohio Coal Co.

86 Wis. 220 | Wis. | 1893

LyoN, O. J.

Although upon some of the questions submitted to the jury there is a conflict of testimony, and in some particulars the testimony may be somewhat confused and obscure, yet, after careful consideration, we are of the opinion that it is sufficient to support findings that the exigencies of the business, and the reasonable safety of plaintiff and the other persons employed in the hold of the vessel, required that a person of prudence, caution, and constant watchfulness and attention to his duty should be employed to signal the engineer when to hoist the full buckets; that no such signals should have been given until such person knew that the men in the hold were clear of the buckets and the same were ready to be hoisted; that the boy employed by the company to signal the engineer was about twelve or thirteen years of age; that he gave the signal which resulted in injuring plaintiff prematurely and negligently; that plaintiff did not know who’ was employed to give the signals, or that the person so employed was incompetent to perform that duty; and that the plaintiff, when injured, was in the exercise of reasonable care. By returning a general verdict for plaintiff the jury necessarily found, under the charge of the court, all the above propositions of fact which the testimony thus tended to prove. These propositions are, therefore, verities in the case. In like manner, under the charge of the court, the jury necessarily found that, to the knowledge of the coal company, the boy was incompetent to perform the duty of giving such signals with reasonable safety to the plaintiff and his co-employees in the hold of the vessel. If such finding is also supported by the testimony, there can be no •doubt that the plaintiff is entitled to recover in the action. Whether it is so supported is, therefore, the only question to be determined on this appeal.

The only testimony bearing upon the question of the competency of the boy is, on’ the part of plaintiff, that the boy was only about twelve years old, and that he prematurely and negligently gave the signal to hoist which resulted in injuring the plaintiff; and on the part of defendant, that he performed that duty satisfactorily for about a week before the injury. True, there are other statements in the testimony on behalf of defendant, as that such boys are usually employed to give the signals, and that the custom is to give them in the first instance to the engineers, when the person charged with the duty of giving them sees for himself that the full buckets have been attached to the hoisting apparatus, and then -for him to warn the workmen in the hold of the vessel to get out of the way. It is claimed that such testimony also tends to establish the competency of the boy; but we think otherwise. No usage to ■employ boys of tender years to perform duties involving the personal safety of others, which require judgment, dis-1 cretion, and care greater than is usually possessed by boys •of such age, can be upheld for a moment. As to the other branch of the testimony just mentioned, if it is a valid custom for the person employed to signal the engineer to give the same as his inspection and judgment dictate, without signals from the hold of the vessel, a still greater responsibility rests upon the company in the choice of an employee to give the signals, and greater care is required in making .such choice than would be required were the signals given after information received from the men in the vessel that the buckets were ready to be hoisted. So this testimony is rather against than in favor of the company.

As above stated, the facts that the boy was but twelve ■or thirteen years old, and that the plaintiff received the injuries complained of because of his negligence in prematurely giving the engineer the signal to hoist the bucket, are verities, made so by the verdict. The controlling question is, Are those facts sufficient to send to the jury the question whether the company is liable to respond in damages for plaintiff’s injuries, on the ground that it knowingly employed an incompetent person to give the signal to the engineer, there being no proof that the boy failed to perform his duties properly in any other instance ? It seems clear to our minds that the above question should be answered in the affirmative. The duty of giving the hoisting signal to the engineer required the exercise of a good degree of judgment and discretion, and constant care and watchfulness. It is common knowledge that, while a boy of twelve or thirteen years of age may possess and be capable of exercising these qualities, yet a large percentage of such boys do not possess them or are not capable of exercising them continuously. It would prove a great strain upon an adult to require his undivided attention', every minute of working time during each day to giving-these signals, especially if properly conscious that a single-mistake might result in maiming or killing some one in the vessel. It is certain that very many boys of twelve and thirteen years of age — probably a large majority of them — ■would be incapable of enduring that strain, and would prove ■ entirety unable to maintain the ceaseless concentration of thought and purpose required, or to exercise in each emergency of the business the judgment and discretion essential to the safety of those men. That the boy employed by the coal company to give those signals possessed those qualifications is not conclusively proved by the fact that he performed the duty properly for a week, although it is - to his credit that he did so. "We are not informed.of the-amount of work done during that week, or how. pressing. or constant his duties were.

The presumption of the common law is that a child under fourteen years of age is incapable of committing a crime; but, as applied to a child over seven years of age, this presumption may be rebutted by evidence. 1 Bish. Grim. Law (6th ed.), § 368. The rule recognizes the immaturity of -children of such tender years, their lack of judgment and 'will and concentration of purpose, the existence of which 'conditions all experience has proved, and fixes the age when the presumption of capacity arises at fourteen years. In •analogy to that rule, and having due regard to what we ■deem most persuasive considerations of public policy, we hold that on the proofs in this case the presumption of law is that the boy employed by the coal company to give the ■•signals was. incompetent for that duty, and that the company employed him at its peril of being able to prove, if sued for injuries resulting from his negligence, that he was in fact -competent. We hold further that the defendant has not proved conclusively the competency of the boy, ■and henee that the verdict finding him incompetent cannot be disturbed.

By the Court.— The judgment of the circuit court is affirmed.