108 Mo. App. 621 | Mo. Ct. App. | 1904
(after stating the fapts.) — The main contention urged in behalf of the defendant' is that the evidence shows no breach of any duty owed to the plaintiff; that the task assigned to him by the foreman, the only pérson having authority, was not to clean the machine, but to carry papers from place to place and run errands; a task not involving danger nor the use of machinery, and, therefore, calling for no instruction or advice in regard to the perils of the factory or working about the machines. This statement of the facts somewhat contracts the sphere of plaintiff’s duty as it is to be deduced by fair inference from the evidence. It was shown without dispute that among his tasks was clearing the floor under the machine which hurt him, of scraps of paper and other trash. As we glean from the evidence, .this involved working about the machine and was to some extent dangerous; though it did not involve danger of injury from the particular part ,of the machine where plaintiff’s hand was torn. It will be observed that the learned trial judge authorized a‘verdict for the plaintiff only on a finding that the foreman saw him at work cleaning the machine and permitted him to continue at that work without caution or advice. This was dealing liberally with the defendant; for, without deciding the point, it strikes us that a lad of such youth as the plaintiff, should have been instructed regarding the dangers of the factory when he was set to work in it at 'the tasks conceded to have
Passing from these comments on the evidence, which show how narrow is the margin between' the conceded duty of the plaintiff and the work which caused his injury, and which the defendant says was not his duty, let us look at the law of the case.. The general rule of law is that a minor of such extreme youth can not be assumed to know the danger of working with or about dangerous machinery and must be cautioned and instructed when he is set to work about it, on pain of
The main instruction given by the court was conservative in its statement of the defendant’s duty to have the plaintiff cautioned against the danger of injury by the machine around which his regular duty lay,, and the other machines in the factory. The evidence is clear that the boy was wholly without experience of machinery and had but little, if any, conception of the peril to which he was exposed. It is conceded that the foreman knew his youth and the novelty of the work to him, but gave him no instruction. Such conduct toward a boy ten years of age, employed in a factory where there were many complicated machines moved by steam through the agency of cogs and pulleys, is not the kind that a court can say imperatively was right and that therefore the question of its propriety should not have been left to a jury.
As to the refused instructions: It is not essential
It is said the verdict is exorbitant, but our opinion is the other way. The boy lost his thumb and the other injuries to his arm and hand were extremely severe and caused great suffering for a long time.
The judgment is affirmed.