Meir v. Pope

245 S.W. 960, 1922 Tex. App. LEXIS 309

Opinion

LEVY, JT.

(after stating the facts as above). It is thought that the court did not err in overruling either the general demurrer or the special exception to the petition, and therefore the first and second assignments of error are overruled.

In the fourth and sixth assignments of error the court’s general findings of fact numbered 6 and 7 are assailed upon the ground that the evidence does not support the same. As the statement of facts appears before us, there is evidence authorizing the court to believe and find as stated in the paragraphs mentioned.

The seventh assignment of error challenges tile court’s conclusion of fact that the plaintiff was not guilty of contributory negligence. There is evidence to support the conclusion made by the court. In order for this court to set aside that conclusion of fact, it would have to appear as a matter of law that the plaintiff was guilty of contributory negligence proximately causing or contributing to cause his injury, and this we do not think can be said from the record before us.

Hie eighth assignment challenges the court’s conclusion that the employment of the plaintiff was in this case a violation of the child labor law of the state, and therefore actionable negligence in this case. The plaintiff did not plead a violation of the law, and did not in his pleading specially seek a recovery on that ground. So, even if the court did conclude that there was negligence in this respect, the finding would not warrant a reversal of the judgment, because the court also found negligence in the other respect that was alleged; and the judgment could be supported, as it here is, alone upon the finding of the particular negligence pleaded.

In view of the court’s findings, it could not properly be said, we think, that the plaintiff assumed the risk of injury; and the tenth assignment of error is overruled.

The third and ninth assignments of error present the point that in the full circumstances of this case there is shown no negligence on the part of the appellant. The point is predicated upon the contention that the evidence showed that the minor knew how to tilt the bowl to clean it, how to put on the electric power and operate the machine, and how to stop, or shut off, the electric current; hence there was no duty owing on the part of the appellant to instruct or warn the minor as to the operation of' the machine or appliance. The court does find the facts stated, but further finds, as qualifying the findings, that the minor “knew there was some danger in the machine,” but “did not have any experience and was of immature judgment and discretion, and did not know the extent of the danger to which he was exposed when he undertook the work assigned to him.”

The minor was thirteen years old and had never worked at that kind of work before that one time. The minor testified, and it so appeared, that he “had never seen anybody else clean the mixer.” The appellant reasonably knew these facts. In view of all the evidence and the court’s findings, it should be said that the minor possessed general knowledge of cleaning the bread mixer and of its operation by electricity, but did not have full appreciation of the dangers to which he would be exposed in cleaning it while in operation, and did not have that amount of experience nor judgment nor discretion from which he could have known of the dangers to which he would be exposed in cleaning it while in operation. The duty of instructing minors is based upon the fact that without instruction they would be exposed to avoidable dangers of which they are presumably ignorant. 3 Labatt’s Master & Servant, § 1155; Wood v. Cotton Product Co., 88 S. W. 496; Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511. In the facts this court cannot say, as a matter of law, that there is no negligence, upon the ground that there was no duty to warn or instruct the minor as to avoidable dangers to which he would be, or probably would be, exposed in the work assigned to do.

The judgment is affirmed.