170 Wis. 165 | Wis. | 1919
The trial court held that since the plaintiff at the time of the accident was a minor of the age of seventeen years the rights and liabilities of the plaintiff and defendant arising under the facts and circumstances shown are governed by the child-labor statutes embraced in sub. 2,
The court held that the facts indisputably show that plaintiff was injured while employed by defendant in pulling stumps with a stump-puller; that this employment of plaintiff was an engagement in an agricultural pursuit involving the use of mechanical power; that defendant’s negligence in failing to furnish a stump-puller properly equipped with a “dog” or safety device for its safe operation made the employment and place of employment not as free from danger to the life and safety of plaintiff as the employment and place of employment would reasonably permit; and that plaintiff’s contributory negligence constituted no defense in the action, because this employment of plaintiff while a minor by defendant subjected defendant to criminal liability for violation of the child-labor law within the rule of Pinoza v. Northern C. Co. 152 Wis. 473, 140 N. W. 84, and other cases.
Did the court err in holding that the employment of the plaintiff was in violatien of sub. 2, sec. 1728a? This statute provides that
“No employer shall employ, require, permit or suffer any minor ... to work in any place of employment, or at any employment dangerous or prejudicial to the life, health, safety or welfare oí such minor. . .”
This provision is followed by others in the same section imposing duties and conferring powers on the industrial commission to ascertain and fix “such reasonable classifications of employments and places of employment” of minors, “and to issue general or special orders prohibiting the employment of such minors . . . and to carry out the purposes of sections 1728a to 1728/, inclusive, of the statutes.” The provisions of secs. 2394 — 41 to 2394 — 70 are made a part of this statute so far as applicable and consistent there
“Until such time as the said commission shall so investigate, ascertain, determine and fix the classifications provided in this section, the employments and places of employment designated in the following schedule shall be deemed to be dangerous or prejudicial to the life, safety, health or welfare of minors under the ages specified,” or dangerous to the life, etc., of others where such minor is employed.
A schedule of employments or places of employment dangerous or prejudicial to the life and safety of minors under the ages specified are designated in the act, denominated “a,” “b,” and “c.” These schedules classify minors according to age, schedule “a” embracing those between eighteen and twenty-one years of age. The terms and provisions of this statute indicate that the legislature intended to ascertain, de- ‘ termine, and fix'a classification of employments and places of employment which were in fact dangerous or prejudicial to the life, health, safety, and welfare of minors and enumerated them in the appended schedules. It is expressly enacted that such schedules are to remain as the classification until the industrial commission shall, under the powers conferred on it in the Statutes, make a different classification. The commission has not changed the classification so made by the legislature. An interpretation of sub. 2, sec. 1728a, requires that all its provisions be construed together, and when so treated it is evident that the legislature condemned the employment of minors and females in what the legislature considered dangerous and unhealthful occupations. To accomplish this result it w¡as appropriate for the legislature to declare which employments and places of employment are within this category. Determination of which employments
It remains to be determined whether or not the facts and circumstances of the case show that plaintiff at the time of his injury was engaged in an employment or place of employment specified in schedule (a), (b), or (c) of this statute.
Plaintiff was a minor under eighteen years of age at the time of the accident and hence can only be included in schedule (b) of sub. 2, sec. 1728a. It is contended in his behalf that his employment and place of employment were included in paragraph 6 of schedule (b), which reads as follows: “Elevators; in the running or management of any elevators, lifts or hoisting machines.” It is claimed that the stump-puller in question, as described by the witnesses, is a mechanical contrivance commonly known as an elevator, lift, or hoisting machine. We think it manifest that it is not within the class of mechanical contrivances designated as an elevator, lift, or hoisting machine in paragraph 6 of schedule (b). Nor do we find any other designated employment or places of employment in the schedules of this statute that cover and include the plaintiff’s employment. The trial court found the plaintiff was engaged at the time of the accident in an agricultural pursuit involving the use of mechanical power and upon that ground held plaintiff’s employment was one
The result is that the rights and liabilities of the parties to this action are not governed by the statutes above referred to respecting the employment of minors, and their rights are governed by the law applicable to persons generally for the recovery of damages for personal injuries’ proximately ■caused by the acts of another. The jury hás found that the defendant’s negligence in failing to furnish a stump-puller with safety devices and guards so as to make it as free from danger to the plaintiff as the nature of the employment would reasonably permit was a proximate cause of plaintiff’s injuries. In answer to question .7 they found that a want of ordinary care on plaintiff’s part proximately contributed to his injuries. These findings must be accepted as verities in the case. -It necessarily follows that plaintiff’s contributory negligence defeats his right to recover any damages for the injuries he sustained.
The defendant contends that plaintiff is not entitled to recover the costs in the action which were incurred in the trial
The plaintiff having recovered in the action, he is entitled to the costs provided for in sec. 2918, Stats., in actions based on contract.
By the Court. — The judgment appealed from is modified by deducting from the whole amount of damages recovered, namely, the sum of $2,897.17, the amount awarded plaintiff as a recovery on his first cause of action as damages for personal injuries, namely, $2,645; and leaving the balance of $252.17 as damages recovered in his second cause of action, together with his costs and disbursements taxed and allowed at the sum of $224.50, making a total recovery of $476.67; and as so modified the judgment is affirmed.