Saller v. Friedman Bros. Shoe Co.

109 S.W. 794, 130 Mo. App. 712, 1907 Mo. App. LEXIS 584

• Court: Missouri Court of Appeals
• Decided: November 5, 1907
• Status: Published

Opinion

BLAND, P. J.

(after stating the. facts.) — -In the examination of jurors on their -voir dire when counsel for plaintiff asked the following questions of Samuel Polk, one of the panel of jurors, the following occurred:

“By Mr.' Merryman:

“Q. What business are you engaged in? A. Insurance agent.

“Q. What kind of business? A. Life and accident.

“Q. Do you insure against these accidents in factories? A. Yes.

“Q. Are you engaged-in that kind of business? A. No, sir.

“Q. Do you do business with the Travelers Insurance Company?

‘“'Counsel for defendant objected to that question as incompetent and immaterial.

“Q. The Court: I think it is material. I do not know who may be interested in this case. I do not see it will do any harm.

“Mr. Gentry: There is certainly no evidence that anybody is interested in this case except Mr. Sailer and the Friedman Brothers Shoe Company from the records.

“Objection overruled. To which ruling of the court counsel for defendant then and there duly excepted at the time.

“A. I do business with them.

“Q. You do business with them, do you? A. Yes.

“Juror Thomas W. M'essick was asked by counsel for plaintiff on his voir dire.

“Q. Your name is Thomas W. Messick? A. Yes.

“Q. You are a married man? A. No, I was.

“Q. You are a single man? A. Yes.

“Q. In what business are you engaged? A. I am in the auditor’s office United Railways.

“Q. Did you ever hear of this case? A. No.

“Q. Is there any reason to prevent you giving the parties a fair and impartial trial? A. No.

“Q. Do you know anybody connected with the Travelers’ Insurance Company?

“Counsel for defendant interposes the same objection. Objection overruled. To which ruling of the court counsel for defendant then and there duly excepted at the time.

“A. No.”

The insurance company was not a party to the suit, and defendant’s contention is that the effect of asking the question was to suggest to the jurors that the Travelers’ Insurance Company might be interested in the case and thereby w'ork upon the prejudice of the jurors against the insurance company. Of course such method of examination on the trial of the issues would not only be objectionable but extremely reprehensible. The course of the examination suggests the idea that plaintiff’s counsel knew, or suspected, the Travelers’ Insurance Company might be liable to defendant for any judgment plaintiff might recover in the action, and his object in making the examination was not to challenge the jury for cause (for this was not done) but to gain information to guide him in making his peremptory challenge; if such was his object, the examination was permissible, for counsel have the right to probe a proposed juror to the bottom, for the purpose of ascertaining whether or not his social or business relations, etc., are such as would probably prejudice him against a recovery in the character of case to be tried. The method of examination of jurors on their voir dire pursued by plaintiff’s counsel was approved in the following cases: Faber v. Reiss Coal Co., 102 N. W. 1049; Chybowski v. Bucyrus Co., 106 N. W. 833; Foley v. Cudahy Packing Co., 119 Iowa 246; Iroquois Furnace Co. v. McCrea, 191 Ill. 340; O’Hare v. Railroad Company, 139 Ill. 151.

2. At the close of plaintiff’s case, defendant offered a demurrer to the evidence. The refusal of the court to grant this request is assigned as error. Defendant’s counsel contends the request should have been granted for the following reasons-:

(a) Because no negligence was shown on the part of defendant.

(b) Because plaintiff’s own evidence shows that he assumed the risk, if any, connected with the operation of the machine.

(c) Because plaintiff’s evidence shows he was guilty of contributory negligence.

The evidence shows the machine could be stopped in two seconds, by the operator removing his foot from the treadle. If this should be done when the lower half ■of the molder descends and is pushed out clear of the upper half, and the molded sole is then removed and another sole put in its place to be molded, and the machine then started, the operation, it seems to us, would be very simple and would be void of any danger to tl\e operator. On tbe other hand, if the machine should he kept going rapidly and the operator -should undertake, while the machine is in motion, to remove and replace soles in the under half of the molders, it seems to us he would be more than likely to get the fingers of one or both hands caught and crushed between the upper and lower halves of the molders. Plaintiff’s evidence shows that when the foreman ordered him to “hurry up,” he kept the machine going rapidly all the time to expedite the work, and that Leonard stood near him for a moment and saw his operating the machine in this manner but said nothing; that he (plaintiff) was scared and operated the machine rapidly to avoid being discharged, Avhich he anticipated would he done if he did not succeed in turning off the work more rapidly than he had been doing; that he did not think of being hurt and no one had pointed out, or suggested, to him that it would be dangerous for him to operate the machine in the manner he was operating it at the time. We think this evidence tended to prove Leonard, .the foreman, was guilty of negligence in not only permitting plaintiff to operate the machine in a dangerous manner, but also in exciting him to run it faster than could be done in safety. The contentions, that plaintiff assumed the risk and was guilty of contributory negligence may be discussed together: Plaintiff’s proof is to the effect that he was not instructed Iioav to operate the machine further than seeing Marohn operate it for a feAV ininutes, and who told him to start the machine by. putting his foot on the treadle and to stop it by removing his foot from the treadle; that he had never operated a machine of any kind before. Generally, an employee assumes such risks as are open and obvious, or which he Avould have observed had he used ordinary caution; but children are not expected to observe closely the construction of machines at Avhich they are put to work or to appreciate the ordinary risks incident to their operation, and for this reason are not held to assume the ordinary risks of their operation, or such risks as they do not perceive and apprehend, and of which they are not informed and warned against. Van-esler v. Box Co., 108 Mo. App. 1. c. 628-9, 84 S. W. 201, and cases cited. As a youth grows in years and experience, he becomes more and more amenable to the rules of law in respect to the assumption of risk and contributory negligence applicable to adults, but there is no period of minority at which a court can say, as a matter of law, he, in this respect, stands on the same plane as an adult. His capacity, not his age is the criterion by which his responsibility and conduct should be measured; and whether or not a youth assumes the ordinary risks incident to his employment, or was guilty of negligence which contributed to his injury, where no instructions are given or the dangers of his employment pointed out to him by his employer, is almost always a question for the jury, and is always so where different inferences are fairly deducible from the evidence. [Anderson v. Railroad, 161 Mo. 411, 61 S. W. 874; Heinzle v. Railway, 182 Mo. 528, 81 S. W. 848; Anderson v. Railroad, 81 Mo. App. 116; Fry v. Transit Co., 111 Mo. App. 1. c. 333, 85 S. W. 960; Edwards v. Railroad, 112 Mo. App. 1. c. 659, 87 S. W. 587; Butler v. Railway, 117 Mo. App. 360, 93 S. W. 877.] On plaintiff’s evidence we do not think it can he said, as a matter of law, that he comprehended the danger in operating the machine in the manner he was operating it at the time he was injured, and in view of his evidence, that he had been excited by the language of the foreman to run the machine fast and continuously, we think the questions as to whether or no he assumed the risk, and whether or no he was guilty of contributory negligence, were questions for the jury, and therefore that the demurrer to the evidence was properly overruled.

3. One of the allegations of the petition is, that the machine was dangerous, and especially dangerous to he operated by one of plaintiff’s age and. inexperience. After Leonard, the foreman (introduced by defendant as a witness) had testified that he was familiar with the machine and had worked in shoe “factories for sixteen years, the following occurred:

“Q. I will ask yon if that machine is a modern, well equipped, safe machine.

“Counsel for plaintiff objects to the question.

“Mr. Gentry: 1 propose to show by this witness 'that this machine is the safest machine of this kind that is known or used in the market.

“The Court: I do not think that is relevant in this case.

“Objection sustained.

“To which ruling of the court counsel for defendant then and there duly excepted at the time.

“Witness says machines of this make and type are in common use in shoe factories and in the trade in general.

“Q. And I will ask you whether or not they are commonly used by boys of plaintiff’s age, size and capacity.

“Counsel for plaintiff objects to the question.

“Mr. Gentry: We offer to show they are.

“Objection sustained.

“To which ruling of the court counsel for defendant then and there duly excepted at the time.”

In Bohn v. Railway, 106 Mo. at pages 433-4, 17 S. W. 580, Black, J., said:

“It is'not the duty of the master to furnish any particular kind of tools, implements or appliances. His duty in this respect is to use ordinary care and diligence in selecting and furnishing safe and suitable tools and implements. No inference of negligence can arise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in tbe same kind of business.” Quoted and approved in Minnier v. Railway, 167 Mo. 1. c. 113, 66 S. W. 1072. See also Mason v. Mining Co., 82 Mo. App. 1. c. 370, and eases cited; and Kane v. The Falk Co., 93 Mo. App. 1. c. 209.

The evidence that the machine was in common use was admissible for the purpose of rebutting any inference the jury might draw, that defendant was negligent in placing plaintiff. to work on a dangerous machine Avithout instructions, or warning of its dangers. It seems from the abstracts, that defendant succeeded in getting this evidence before the jury; its offer was to go yet further and shoAV that boys of plaintiff’s size, age and capacity commonly operated such machines. To admit this character of evidence and apply to boys the presumption arising ‘from” common use of a machine Avould, in effect, put boys in a class Avith the machines upon which they are commonly put to work by their employers and to measure a particular boy’s capacity, by a custom adopted by employers of bo]^ generally. The laAA has .not set up any such standard by which a court or jury may measure the capacity of a boy to appreciate and avoid the danger of a machine upon Avhich he has been put to Avork by his employer.

4. Error is assigned in the giving of the following-instruction for plaintiff:

“1. If the jury find and believe from the evidence that the defendant OAvned and operated the factory referred to in the evidence; and if the jury further find and believe from the evidence that in said factory was a machine knoAvn as a sole molder; and if the jury further find and believe from the evidence that on or about June 13, 1905, the plaintiff was in the employ of the defendant as an operator of said sole molder; and if the jury further find and belieA-e from the evidence that on or about said date the defendant by its agent and servant acting within the scope of his employment negligently commanded the plaintiff to ‘hurry up and get a move on himself,’ and that the plaintiff in obedience to said command, and in the presence of said agent thereupon started to operate said machine in a rapid manner, and that it was-dangerous to plaintiff for him to operate said machine in such manner, and that the defendant by said agent, or any other agent, negligently failed to instruct and caution said plaintiff, so that plaintiff would comprehend the danger connected with the operation of said machine, and that directly on account of the aforesaid command and directly on account of the aforesaid failure to instruct and caution plaintiff as to the dangers aforesaid, plaintiff’s right hand was caught in said sole molder and two fingers so crushed that it was necessary to amputate them and plaintiff thereby sustained the injuries mentioned in the evidence; add if the jury further find and believe from the evidence that the plaintiff at the time of said injuries was a minor fifteen years and ten months old, and that he was inexperienced in the operation of said machine, and that plaintiff did not know of and comprehend the dangers connected with the operation of said machine at the time of his injuries; and that said dangers were not apparent to a person of the age, experience and capacity of plaintiff, and that the defendant knew of plaintiff’s inexperience, youth and capacity, and knew that plaintiff did not know and comprehend the dangers connected with the • operation of said machine, or by the exercise of ordinary care might have had such knowledge, and thereafter might have instructed and cautioned plaintiff regarding same and failed to do so, then you should find for the plaintiff, unless you further find that plaintiff, at the time of his injury, failed to use such care and prudence as a boy of his age, experience and capacity should have ordinarily used under similar conditions and circumstances to have avoided injury.”

It is argued that the instruction is erroneous, first, in that it permitted the jury to find defendant guilty of negligence in commanding plaintiff to “hurry up and get . a move” on himself; second, that it allowed plaintiff to recover if defendant, by its agent, Leonard, or any other agent anywhere in its factory, negligently failed to instruct or caution plaintiff, so he would comprehend the danger connected with the operation of the machine ; third, that it was error to permit the jury to find from the evidence, that plaintiff, by reason of his inexperience did not know and comprehend the danger of operating the machine at the time of his injury.

In Coyne v. Railway, 133 U. S. 370, plaintiff was a laborer or construction hand, under a construction boss or foreman of the defendant. He was injured by the fall of a steel rail, which he and other laborers were trying to load from the ground upon a flat car, and which struck the side of the car and fell back. The negligence alleged was, that the foreman moved out the construction train to which the flat car belonged, in the face of an approaching regular freight train,-to avoid which the laborers were hurrying to load the rails; and that he failed to give the customary word of command to lift the rail in concert, but, with the approaching freight train in sight, and with oaths and imprecations, ordered the men to get the rail on in any way they could, and they lifted it without concert. “Held, that whatever negligence there was, was that of either the plaintiff himself or of his fellow servants who with him had hold of the rail.” Coyne, the plaintiff, was not a minor, nor was there allegation or proof that he was so excited' or frightened by the language of the foreman as to throw him off his mental balance; for these reasons the case is not authority for holding, that a command given to a youth in such a way as to frighten him and cause him to use undue haste in the performance of his work is not negligence.

The second objection to tbe instruction is not well taken, for tbe reason it would class plaintiff, a youtb, with an adult, and bold bim to tbe exercise of tbe same degree of prudence and caution. In support of tbe second objection, it is argued that tbe jury might find thát if anybody in tbe whole factory, who was tbe agent of defendant for any purpose, failed to instruct or warn plaintiff, be might recover. Tbe instruction as it reads is open to this. criticism. But in the light of tbe testimony of plaintiff, of Leonard, tbe foreman, and of Marobn, that Leonard directed plaintiff to Marobn, who was operating tbe machine at tbe time, for instructions, and that Marobn run tbe machine a few minutes to show plaintiff bow it was operated, it is not at all probable, and hardly possible, that tbe jury construed tbe instruction as defendant contends they might have done. As reasonable men (and tbe jurymen are presumed to be such) they would construe tbe instruction to mean that negligence might be predicated on tbe failure of Leonard or Marobn, or both, to instruct plaintiff bow to operate tbe machine with safety, not on tbe non-action of some other agent of defendant with whom plaintiff bad no communication whatever. In support of tbe third objection to tbe instruction, defendant insists that plaintiff’s own • evidence shows be comprehended and appreciated tbe very action of tbe machine which caused bis injury. Plaintiff, on cross-examination, testified be knew if bis fingers were caught between, tbe upper and lower halves of tbe molder when they came together, they would be crushed. Of course be knew this; tbe simplest child would know as much if it observed tbe operation of tbe machine, but it might not, and probably would not make tbe observation. Plaintiff’s evidence tends to prove that though be knew bis fingers would be mashed if caught between tbe two halves of tbe molder when they came together, yet be swore be never thought of getting hurt. His evidence shows tliapthe idea that be might be hurt never entered his mind until he was hurt; while his evidence shows he knew he might be hurt in the manner he was hurt, yet he never thought oí or appreciated the danger of getting hurt in that manner. It is because of this very thoughtlessness and on account of the inexperience of minors that the law does not hold them to the exercise of the same degree of care as it requires of adults.

5. ' The court refused the following instructions asked by defendant:

“a. The court instructs the jury that if you believe and find from the evidence in this case that the machine by which the plaintiff was injured, while in the employ of the defendant, was in perfect working order at the time of plaintiff’s injury, and was such a machine as was customarily used by reasonably prudent persons in the business in which, defendant was engaged, for the work which said machine was required to do; and if the jury further find from the evidence that the plaintiff was a boy fifteen years of age, .of average intelligence, and having sufficient capacity to understand the danger of having his fingers or hand injured if the same were permitted to be caught between the upper and lower portions of the machine used to mold soles; and if the jury further find from the evidence that the plaintiff voluntarily began to work at said machine and continued to work there with a full knowledge and understanding of Avhatever danger there was connected with the operation of said machine, then the plaintiff assumed the risk of injury which might result to him from the operation of said machine and is not entitled to recover in this case and your verdict must be for the defendant.

“b. The court instructs the jury that the plaintiff charges in his third amended petition in this case that the defendant negligently exposed him to the dangers connected with the operation of the machine in question without instructions or caution which would enable him to comprehend and appreciate said dangers. Yon are therefore instructed that if you believe and find from the evidence in this case that at the time of and prior to-plaintiff’s injury he knew that if his hand was caught between the upper and lower soles of said machine it would be injured, then the defendant is not liable to him in damages for failure to instruct or caution him concerning the danger of injury.”

If plaintiff had been an adult, and the danger to which he was exposed in the operation of the machine had been obvious, defendant’s failure to call his attention to such danger, or to instruct him, would not constitute negligence, for the reason the law presumes he saw and appreciated the danger to which he was exposed. [Nugent v. Milling Co., 131 Mo. 241, 33 S. W. 428; Herbert v. Mound City Boot & Shoe Co., 90 Mo. App. 305.] But as Ave have seen, the law is different where the plaintiff is a minor. The mere fact that the danger to which he is exposed is open and obvious to a man of ordinary prudence, does not relieve the employer from the duty of instructing a minor in respect to such obvious danger; nor did the fact that plaintiff kneAV his fingers would be crushed if caught between the upper and lower molders of the machine while they were being pressed together, relieve defendant from instructing plaintiff hoAV to avoid this danger, nor of the duty to warn him against it. The instruction is also faulty in that it ignores altogether the allegations and proof that the injury was caused by the negligence of defendant’s foreman in exciting and stimulating plaintiff to run the machine at a rapid and dangerous speed.

7. The foregoing discussion applies to refused instruction B. This instruction ignores the minority of plaintiff, and Avould require of him the exercise of the same degree of caution as the law exacts of an adult.

8. It is finally contended that the verdict is excessive. Plaintiff lost the index and middle fingers of bis right band. Not only is tbe band maimed and deformed and its beneficial use depreciated for life at least half, but tbe stumps of tbe amputated fingers are shown by the evidence to be tender and painful at times. Plaintiff suffered great pain and mental anguish. He lost considerable time. He is entitled to compensation for bis .loss, present and future, and for bodily pain and mental anguish caused by tbe injury. Such a loss is not susceptible of mathematical calculation. It can only be estimated on proof of tbe nature* extent and permanency of tbe injury, based on plaintiff’s expectancy of life. Its estimation was therefore within tbe peculiar province of tbe jury, and their verdict should not be interfered with unless tbe damages are so manifestly excessive as to show they were influenced by passion or prejudice. No such showing is made by any evidence in tbe case, nor do we think it is indicated by tbe amount of tbe* verdict.

No reversible error appearing tbe judgment is affirmed.

All concur.