Sprague v. Atlee

Oct 9, 1890

Reporters:: ,
Before:: Robikson

RobiksoN, J.

The defendants are copartners, under the firm-name of S. & J. C. Atlee ; and at the time the injury in question was received they were engaged in operating a sawmill and lumber-yard at Fort Madison, employing in that business over two hundred men and boys. The plaintiff, Don D. Sprague, was thirteen years old on the twenty-second day of March, 1888 ; and, in the month of June of that year, he was employed by defendants to assist one Yan Buskirk in running a saw. He continued in that employment until the eighth day of September, 1888, when he received an injury from the saw, which resulted in the amputation of his right hand at the wrist. The plaintiff claims that he was employed for the sole purpose of taking laths, pickets and binders from the machine after they were sawed, and assorting and piling them, and that such employment was without danger; that, at the time he was injured, he was *10negligently ordered by defendants to run the saw ; that it wsa dangerous ; that plaintiff was without experience in running such machinery, and knew nothing about the danger incurred in running it; that the running of it was outside the scope of his employment; that the machinery was dangerous and defective in that the gauge to the saw had no safeguard to prevent injuries when it was changed and regulated ; that the saw was unprotected ; that defendants knew that plaintiff was not acquainted with the dangerous character of the machine, and that they negligently and wilfully failed to inform him how to use it, and of the dangers connected with its use. The defendants deny all liability on their part; deny that the machinery was defective ; and deny that it was any more dangerous than any other machinery used for a similar purpose. They claim that, for many weeks prior to receiving the injury, plaintiff was familiar with the use and operation of the machine, and knew of all dangers connected therewith, and, worked with it without objection, and of his own free will.

i. master and ’ oha5f”ngejfor oause. I. The appellants complain of the ruling of the court in sustaining an objection to William Pritchett as a íuror- He was a member of the regular Panel> and, while being examined as to his qualifications to act as a juror, stated that he had heard Mr. Atlee make a statement in regard to the merits of the controversy, and had formed an opinion, and that evidence would be required to change it; but he stated that he thought it would not influence him against a just verdict on the evidence. The objection to the juror was made on the grounds of challenge specified in subdivision 9 of section 2772 of the Code, which is as follows: “9. When it appears the juror has formed or expressed an unqualified opinion on the merits of the controversy, or shows such a state of mind as will preclude him from rendering a just verdict.”

Upon the trial of challenges in civil as well as in criminal cases, other evidence than the testimony of the person challenged may be heard, and the court is *11required to determine both the law and the fact involved in the challenge. Code, secs. 2773, 2774. It was the duty of the court to determine whether the opinion formed was an unqualified one on the merits of the controversy, or whether the state of mind of the juror appeared to be such as would preclude him from rendering a just verdict. The superior .court was enabled to reach a conclusion as to his qualifications, not alone from the answers he gave, but from his appearance and general demeanor. While we should not have concluded that the ruling was wrong had the challenge been overruled, yet we cannot say that the juror was improperly rejected. Much of what was said in regard to challenges of jurors in State v. Munchrath, 43 N. W. Rep. 211, is applicable to the q uestion under consideration.

2‘ géñoeoícoem-cation ;1 ¡efe?-’ contributory’ negligence. II. The saw at which plaintiff was employed was set in a table about thirty-eight inches square, which was attached to a movable frame resting upon slides. On the table, at the right of the operator who controlled the saw, was a movable strip or bar of wood, used as a gUjqe or gauge. Marks on the table parallel to and at different distances from the saw indicated the places at which the gauge should be set to saw laths, pickets and binders. It was usual in changing the gauge for the operator to move the end nearest to him to the proper mark with one hand, and adjust the further end by striking it with his other hand. The saw was partially covered by a small hood, which served in part to protect the hands of the operator from the saw. The saws commonly used did not have a diameter exceeding eleven or twelve inches; but, on the day preceding the accident, the plaintiff had been furnished a saw having a diameter of seventeen and one-half inches. An employe named Yan Buskirk usually fed the saw, and it was the duty of plaintiff to take the material from the table as sawed ; but he frequently fed the saw, and was so engaged, in the absence of Yan Buskirk, on the day he was injured. He had been sawing binders, but, desiring to saw laths,’ *12he proceeded to move the gauge towards the saw, while it was in motion, in the manner described. The hood did not cover the part oí the saw furthest from him; and, in striking the gauge next to that part of the saw, his right hand was caught by the saw, and injured in such a manner as to cause its amputation. It appears that the saw could have been put out of gear and stojjped by moving the saw table a few inches on the slides, but that was not done. Appellants contend that plaintiff was familiar with the use of the saw, and knew all the dangers attending it; that he should not have attempted to set the gauge without first stopping the saw, and that he had been so instructed ; that in feeding the saw he was out of the place for which he was employed ; that he fed the saw voluntarily, without proper authority, and was negligent in attempting to set the gauge while the saw was in motion.

There is much conflict in the evidence as to most of these matters, but some of the evidence tends to show, and the jury were authorized to find, substantially as follows: The plaintiff was employed to assist Yan Bus-kirk in running the saw. His duties required him to stand back of the saw, and take care of the material as sawed. He frequently changed work with Yan Buskirk, and fed the saw. Occasionally he changed the gauge, but not often, as that was done by Yan Buskirk, when he was present. Plaintiff received no instructions as to the proper manner of operating the saw and changing the gauge, excepting what he learned from Yan Bus-kirk. He had not sufficient strength to move the table on the slides, and thus put the saw out of gear; and he was not large enough to see that part of the saw back of the hood when he was setting the gauge. He had been instructed by Yan Buskirk to set the gauge without stopping the saw in the manner he adopted when injured. The foreman of the mill was Joseph Atlee. He sometimes employed hands, and had authority to change them from one kind of work to another. On the morning of the injury, one McMurphy was acting as foreman in the absence of Atlee. He sent Yan Buskirk outside *13the mill to work with a cart, and directed plaintiff to take charge of the saw, and sent an assistant to fill the place he usually occupied. He worked for a time, sawing laths, then set the gauge for binders, and sawed them for half an hour. He had been asked by McMurphy to saw pickets, but had said he could not. While sawing binders, one of the defendants went to him, and asked him why he did not saw pickets. Plaintiff told him he did not have time. The defendant in question, Sam Atlee, then told him to take the material for the pickets over to another employe, who was sawing pickets, which he did. Appellants insist that the plaintiff violated the orders given him by both McMurphy and Sam Atlee to saw pickets, and that, if he had obeyed such orders, thero would have been no occasion to set the gauge so near the saw as to endanger his hand. But the evidence tends to show that, after plaintiff told Sam Atlee that he could not saw the pickets, his orders were changed, and he obeyed them. It thus appears that plaintiff was running the saw by authority of the foreman duly given, and that he was seen by one of the defendants while so engaged; that said defendant, in effect, ratified the orders of the foreman in directing him to run the saw ; that plaintiff was injured while changing the gauge in the method he had been instructed to follow, and the only one which his size and strength permitted him to use.

‘ machinery: evi ’ III. Testimony was offered in regard to the machine with which plaintiff was injured, and a model of it was used on the trial. It was shown that, while such machines were used, their use was not general. Other gauges were more commonly used. One of them was in the form of three leaves on hinges, which could be turned backward and forward as needed to saw laths, pickets and binders, and, in setting the gauge, the hands of the operator were not nearer the saw than the outer edge of the table. Another was set by means of a screw; and in using that it was not necessary for the hand of the operator to be near the saw. Another was set by means *14of a wheel, and others by other appliances; but in none of them was it necessary for the operator to have his hands near the saw while setting the gauge. After evidence of that character had been given, the defendants offered the testimony of an expert to the effect that the gauge used by them was as safe as any of the other gauges then in use ; but, on the objection of plaintiff, the offered testimony was excluded. The model of defendants’ machine was before the jury, and the different methods of using it had been fully explained. The purpose of the testimony was to show that the danger to the hands of the operator in setting the gauge of defendants was no greater than it was in setting other gauges then in use. Other dangers were not in question. With the model before them, and the fact shown that in using other gauges the hands of the operator were not brought near the saw, the jury were competent to determine the fact which the offered testimony was designed to disclose; and thei’e was no error in rejecting it. Way v. Illinois Cent. Ry. Co., 40 Iowa, 341; Muldowney v. Illinois Cent. Ry. Co., 36 Iowa, 462; Hamilton v. Des Moines Valley Ry. Co., 36 Iowa, 31. See, also, Nadau v. White River Lumber Co., 43 N. W. Rep. 1135.

4. the same. IY. McMurphy was examined as a witness for defendants. After testifying in regard to the directions he gave plaintiff on the morning of the injury, he was asked this question: “State how he appeared to you; whether a boy of average intelligence, or one of more than average intelligence, for one of his years.” The question having been objected to by plaintiff, the defendants stated that they proposed to prove that plaintiff was a bright boy, of more than ordinary intelligence, and that he appeared to understand more about mill machinery than other boys many years his senior in age. The objection was sustained. Plaintiff had been examined and cross-examined in the presence of the jury, and they were as well qualified to form an opinion as to his intelligence as was the witness. The material question was not, *15“What did he appear to understand?” but, “What was his capacity in fact?” We are of the opinion that the objection was properly sustained.

thesame. Y. Complaint is made of the ruling of the court in excluding an answer made by the witness Joseph Atlee to the effect that the gauge in question was “a common standard guide.” The witness had previously given the same answer, and it was permitted to remain in the record. If there was error, it is evident that it was without prejudice.

he same. YI. A portion of the defense pleaded by defendants was set out in an amendment to their answer. In its formal statement of the issues, the SUperior court failed to refer to that portion of the defense set out in the amendment. Under ordinary circumstances, that would have constituted reversible error; but it appears that in this case the statement as made was submitted to the attorneys for defendants before it was given and approved by them. The amendment in question was tiled on the third day of the trial, and the appellants insist that the statement may have been submitted, as aforesaid, before, the amendment was filed. It is not usual for the court to prepare its charge at the beginning of the trial; and we cannot presume that it was prepared in this case before the issues were settled. Having approved the statement of the issues made to the jury, the defendants cannot now be heard to question it. Moreover the court, in fact, instructed the jury quite fully in various paragraphs of its charge in regard to the matters set out in the amendment, and appellants could not have been prejudiced by the omission of which they complain.

_. jnstruo-tions to Jury, YII. Appellants complain of the charge to the jury, and of certain instructions given at the request of plaintiff» for the reasons that they are lengthy, and make frequent reference to the age, intelligence, experience and judgment of plaintiff, and use a number of times such terms as “minority,” “youth” and “inexperience.” The issues *16and facts disclosed by the evidence were so numerous and of such a nature as to require a longer charge than would be deemed necessary in most cases. The one given might perhaps have been shortened without disadvantage ; but there is nothing to indicate that defendants were in any manner prejudiced by its length, and the references and terms objected to seem to have been used properly, and without too much repetition. The charge seems to have been prepared with much care, and, in the matters to which our attention has been called, submitted the case to the jury fairly, and as fully as was necessary.

VIII. The sufficiency of the evidence to sustain the verdict of the jury is discussed by counsel for appellant at great length, and in connection with different questions presented by the record. It is not necessary to mention each point discussed, nor to review the evidence more fully than we have already done. It was for the jury to determine from the evidence submitted whether the machine at which plaintiff was employed was dangerous; whether plaintiff was properly instructed in regard to using it, and was fully apprised of the danger involved in its use; whether he used due care, in view of his age, capacity and experience, in operating the machine ; and whether defendants were negligent in not instructing him properly in regard to it in ordering him to do the work at which he was engaged when injured, and in not providing a safer machine. It is sufficient for us to say that we are of the opinion that the findings and verdict of the jury are sustained by the evidence. See Nadau v. White River Lumber Co., 43 N. W. Rep. 1135.

g# { ’ genóe: dam-IX. The amount of the verdict was seventy-five hundred dollars, and judgment was rendered therefor. Appellants insist that it is excessive. The amount seems large, when the wages paid for labor in mills of the kind in which plaintiff was engaged at the time of the accident are considered, but his expectation of life was then about forty-six years. The loss of his hand will necessarily *17close to Mm many kinds of lucrative employment. In view of these facts and others which the record suggests, we cannot say that the amount allowed is excessive. The judgment of the superior court is affirmed.