100 Neb. 851 | Neb. | 1917
Lead Opinion
The trial court instructed the jury to find a verdict for the defendant, and by our former opinion, ante, p. 118, the judgment of the trial court was reversed. On motion for rehearing the case has been again submitted upon an additional brief and oral arguments.
The plaintiff, who was a minor, brought the action by his mother as next friend to recover damages caused by an injury in an elevator while the plaintiff was in the employment of the defendant company. The petition alleged, “plaintiff herein is a minor of the age of 18 years,” and alleged that the accident occurred on the 22d day of May, 1910, and that “plaintiff was at that time less than 15 years of age.” As the action was begun on the 23d day of October, 1913, the allegation that he was then 18 years of age was an allegation that when the accident occurred he was more than 14 years-of age, and the direct allegation that when the accident occurred he was less than 15 years of age must also, as against the pleader, be construed to mean that he was past 14 years of age. The petition counts entirely upon a common law liability, and not upon the statute which prohibits the employment of a child under 14 years of age, or the statute which prohibits the employment of one under 16 and over 14 years of age, except on certain conditions. The allegation in the petition in that regard was: “Plaintiff further alleges that at that time, and on the date aforesaid, plaintiff herein was a minor, and was not familiar with nor did he appreciate the dangers incident to the operation of
The petition alleges that it was customary when the elevator was lowered to give a signal before passing each floor, and that in this case the operator of the elevator neglected to give such signal. This, however, would not justify placing oneself in the shaft to observe the location of the elevator. The plaintiff testified that there was a place at each floor to ring a bell and call the elevator; that there was a bell on the floor where he was hurt, and that he did not ring the bell, but stood there watching his friend; that a man on one floor who wanted the elevator to come to his floor would “ring the bell — push the button.” “Q. If he was on floor one he would give it one bell, or number two, two accordingly? Is that the way it was operated? A. Yes, sir. Q. And the elevator did not move unless that bell was sounded? A. Wasn’t supposed to, was the way I understood it.” This evidence shows that he fully understood how to use the elevator, and that putting his head into the elevator shaft had nothing
It is now contended that it was negligence to leave an opening in the shaft that permitted plaintiff to insert' his head. But there is no allegation in the petition that raises that question. Nothing is alleged about this opening in the shaft, and no defect in the construction of the elevator or shaft is counted upon. The alleged negligence of the defendant is not proved. The plaintiff’s unnecessary act, prompted by curiosity, was the cause of the accident.
Our former judgment is vacated, and the judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
This case was tried • upon the theory that the boy employed in the packing house was under 15 years of age. The petition alleged that at the time of the injury he was “less than 15 years of age.” The boy’s mother testified: “As a' matter of fact his age was 13, going on 14.” The 'defendant answered: “Defendant is not informed as to the exact age of the plaintiff.” There was then a denial of the averments contained in the petition “in that regard.” They appear to have gone to trial upon the plaintiff’s allegation contained in “in that regard.” They appear to have' gone to trial upon the plaintiff’s allegation contained in the petition that he was less than 15 years of age at the time of the accident. There is no evidence which attempts to dispute or in any way to contradict the mother’s testimony that the boy was “13, going on 14.” She also testified that the truant- officer, McAuley, “knew it positively.” Nobody denies that. She also testified that her son “went to school in South Omaha ever since he was five years old.” The truant officer undoubtedly knew this. He does not deny it.
The plaintiff and defendant went to trial upon the plaintiff’s allegation that he was less than 15 years of age at the time the accident happened, and the defendant’s denial of that allegation. There was undoubtedly an issue to try. Whether the boy was between 14 and 16 or less than 14 might not be material, but, in any event, there would be a liability under the statute.
Section 3575, Rev. St. 1913, forbids the employment of a child under 14 years of age in certain places specified, among which are a manufacturing establishment or a factory or a workshop. The second clause in the section provides that it shall be unlawful for any person, firm or corporation to employ any child under 14 years of age in any business or service “during the hours when the public schools of the town, township, village or city in which the child resides are in session.”
It will be noticed that the foregoing section makes the employment of a child under 14 years of age unlawful. It is. clearly unlawful, and if the truant officer connived at such employment knowing that the boy was
The next section is a long and labored effort to provide that, where the child is between 14 and 16, he may be permitted to be employed in certain places specified, including a manufacturing establishment or workshop, provided that the person or corporation employing him procures and keeps on file and accessible to the truant officers of the town or city, and certain other officers, an employment certificate.
Section 3577 provides: “An employment certificate shall be approved only by the superintendent of schools of the school corporation in which the child resides, or by a person authorized by him in writing, or, where there is no superintendent of schools, by a person authorized by the school district officers.”
Section 3578 provides that the person authorized to issue an employment certificate shall not issue such certificate until he has examined, approved and filed the school record of such child, showing that the child has completed the work of the eighth grade of the public schools or its equivalent, or is regularly attending night school; also “a passport or duly attested transcript of the certificate of birth or baptism, or other religious or official record showing the date and place of birth of such child.” It is also provided that an “attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of such child.” It is also provided that the affidavit of the parent or guardian or custodian shall be required only in case the other documents named' cannot be produced. It is also provided that such employment certificate shall not be issued until such child has personally appeared before and has been examined by the officer
Section 3579 provides that the certificate shall state the date and place of birth of the child, describe the color of the hair and eyes, the height and weight and any distinguishing facial marks, and also the statement that the papers required by section 3578 have been duly exaihined, approved, and filed, and that the child named in the certificate has appeared before the officer signing the certificate and has been examined.
The act also [provides a form of certificate, a limit of the number of hours of employment; the limit to be not more than eight hours in any one day, and not more than 48 hours in any one week.
Section 3585 provides a penalty of $50 where any one employs a child under 16 years of age, and in violation of this article, and also provides a like penalty
Section 3586 provides that the governor shall appoint a board of five inspectors, two of whom shall be women, and the chairman shall be the executive head of the board, and shall reside in that county employing the largest number of children under the age of 16. Any member of the board shall have power to demand the examination of any child under 16 years by a regularly' licensed physician with a view to ascertaining whether the child is able to perform the labor in which it is employed. “No child under sixteen shall be employed who cannot obtain a certificate of fitness from such physician.”
■ Section 3587 provides: “No child under the age of sixteen years shall be employed in any work which by reason of the nature of the work, or place of performance, is dangerous to life or limb, or in which, its health
In this case the child was alleged to be under 15 years, and the mother swore that it was 13, going on 14. It was employed in a packing house, which must be conceded to be a dangerous place. Under the testimony the truant officer and the packing company were all of them guilty. The employer should be fined $50, or be imprisoned not exceeding ten days. While engaged in this unlawful performance the boy came near losing his life, his scalp was lifted up, his teeth were knocked out, yet it is the purpose of the majority opinion that there shall be no liability, and that the thing done is made legitimate.
'Whether' the purpose of the truant officer was to enable the boy to assist his mother in making the living, or whether it was to get an additional hand for the packing house, no one may tell from the record. She says in her testimony that she furnished the school authorities a certificate showing the boy’s birthday to have been July 26, 1895. When .asked if she had done so, she said: “Yes; because Mr. McAuley wanted him to be a little bit older on account of helping me out.” On redirect examination she testified: “Q. But as a matter of fact his age was 13, going on. 14 years old? A. Yes, sir; and the truant officer knew it positively. He went to school in South Omaha ever since he was five years old.”
The petition charges that the employment of the boy was at a time when he “was a minor, and was not familiar with nor did he appreciate the dangers incident to the operation of said elevator, nor did this minor plaintiff understand or appreciate the specific danger * * *
Section 7664, Rev. St. 1913, provides: “The petition must contain: First, the name of the court and county in which . the action is brought, and 'the names of the parties, plaintiff and defendant; second, a statement of the facts constituting the cause of action in ordinary and concise- language, and without repetition; third, a demand of the relief to which the party supposes himself entitled.”
All the requirements of the above section are complied with in the petition, and the undisputed facts show that' the boy is 13 years old. It requires a technical construction of the petition to wipe out the boy’s claim.
This court in Hankins v. Reimers, 86 Neb. 307, held: “Allegations in a petition that a master unlawfully, wrongfully and negligently directed his infant servant to dig a cave in the side of a hill under circumstances particularly alleged, making it dangerous to life and limb to work in said excavation, in effect charges that the master had knowledge or in reason ought to have known of the danger surrounding such work.” The court further held: “If the employment of an infant under the age of 16 years, contrary to the. provisions of the statute, is the proximate cause of an injury to the child, his master is liable therefor.”
The action was one brought against a master for damages following from the death of his infant servant, alleged to have been caused by the master’s negligence. The defendant prevailed, and the plaintiff appealed to this court, and this court reversed the judgment of the court below and remanded the case for further proceedings. In that case there was an allegation in the petition that the' deceased at the time of the accident
In Moran v. Dickinson, 204 Mass. 559, it was held that using an elevator in the course of employment is dangerous to life and limb within the statute.
The tendency to disregard the provisions of the law in a child labor case, or in any case of that nature, is very strong. The community may be very impatient of any sort of restrictions or attempted regulation in the management of what it considers is its own affair. That even judges and jurors may have sympathy with this feeling would not be strange, and especially the judges, for they are the last to give up the things that have been. To illustrate: It is not a great while since the judges down in Massachusetts were engaged in an attempt to suppress witchcraft. They authorized the whipping of parents and children with equal impartiality. The congressman from the south is said to be against all child .labor laws. That the rosy flush of health will fade from the cheeks' of the children of the neighborhood if they are kept indoors is no difference to him. They are not his children. It is not