Petersen v. California Cotton Mills Co.

While in the employ of defendant, plaintiff was injured as a result of being caught by certain revolving machinery. His action for damages resulted in a verdict by a jury in his favor for the sum of four thousand dollars.

It is alleged in the complaint that plaintiff was ordered and directed by one Peter MacDougald, the foreman in the machine-shop, to apply some compound on a belt which was revolving at a high rate of speed between pulleys attached to a beam at a height of about sixteen feet from the floor; that the foreman placed a ladder against said beam and directed plaintiff to mount it for the purpose of applying said compound; that' the task was very dangerous since the ladder was not supplied with hooks to hold it firm and it was but little over sixteen feet long, so that when placed against said beam it stood almost perpendicular to the floor of the shop; that the foreman and defendant knew that it was not a proper or safe ladder with which to perform said task; that the plaintiff was not acquainted with and had no knowledge of the danger in mounting said ladder and neither said foreman nor said defendant warned or instructed him that said ladder was unsafe or dangerous; that plaintiff obeyed the said order of the foreman and, while applying the compound to the belt, the ladder slipped and slided sideways, without any fault of plaintiff, and thereby he was precipitated against a revolving shaft which was propelled by the said belt, and he was whirled about the shaft with great violence and serious injury resulted; that the shaft was in two parts and was coupled together by means of a collar fastened by set-screws which projected about three-fourths of an inch from the surface; .that the coupling was unsafe and dangerous by reason of said projecting screws; that this was known to defendant and unknown to plaintiff and that defendant well knew that plaintiff was a minor of the age of seventeen years or thereabouts and had never been employed as a machinist or mechanic and did not knew or appreciate the danger or risk in the use of, or contact with, the machinery in said shop or in the use of or handling of the appliances or tools in said shop and well knew that plaintiff was ignorant of the hazard and danger connected with said employment.

The plaintiff testified that he had been continuously at work for defendant for seven months, that he worked in the machine-shop, that he was just a “roustabout,” and that he did everything that he was asked to do, “such as running

Considering the distance from the floor to the belt, the rapidity with which the latter was moving, the close proximity of the shaft and the projecting screws and also the position of the ladder, it is unquestionable that he was in a perilous position when he had ascended to the belt in obedience to the command of the foreman. It is equally undeniable, and

In determining the question what is ordinary care on the part of an individual, of course, “all the circumstances of his position' should be regarded, including, in cases like the present, the servant’s orders, the demands of his duty, the apparent risk to be met, and the purpose of his action, no less than his physical surroundings. ’ ’ And, as further stated by Labatt, section 4400: “A second principle which is especially important in cases where the servant was injured as a result of his compliance with a direct order, and which naturally suggests itself as a material element under such circumstances, is that a servant is not necessarily negligent where he acts upon the presumption that his employer, and his employer’s agents have done, are doing and will do their duty. . . . The juridical theory is that the order, having a natural tendency to throw the servant off his guard, may properly be considered to excuse him from the exercise of the same degree of care as would have been incumbent on him if the case had not involved this factor.”

All the authorities, also, emphasize the importance of the distinction between adults and those of immature judgment. Referring to minors, Thompson, in his work on Negligence (sec. 4093), says: “The master is here, as in every other case, bound to act reasonably and justly; and this rule requires him to give suitable warning and instructions to a minor employee in regard to any danger, whether open or concealed, where the danger is not sufficiently obvious to the intelligence or experience of the employee, in the exercise of ordinary care on his part—this care being measured by the maturity of his faculties and the amount of his experience.” And, in section 4094: ‘ This rule applies not only so far as to require the employer to give general warnings and instructions to minor employees as to the dangers attending the duties they

It is, no doubt, true, as the learned author says, that “We meet with confusing and contradictory ideas growing out of the opposing tendencies of the minds of judges,” and he cites a large number of cases from various jurisdictions illustrating this difference, but the apparent want of harmony arises rather from an application of the law to the peculiar facts than from disagreement as to the law itself. All the courts are in concord as to the doctrine that where reasonable men may differ as to the proper inference to be drawn from the facts a case is presented for the determination of the jury.

While the circumstances, of course, are variant, the action of the lower court in holding that the question of negligence was one for just and candid disputation is, we think, within the rationale of the decisions of the appellate courts of this state.

In Ingerman v. Moore, 90 Cal. 410 , [ 25 Am. St. Rep. 138 , 27 Pac. 306 ], it was held that “Where it appears that an employee in a sawmill was seriously injured while running a scantling machine and saw, in attempting to remove slivers from under the saw, by reason of his sleeve catching on a concealed set-screw fixed upon and projecting from a shaft below the saw, the fact that he had been employed in the mill for nearly two years, and had been working as assistant on the scantling machine, in putting the lumber in .place to be cut by the saw, for about nine months, and had, during that time, in the absence of the foreman, run the machine for eighteen days, does not warrant the appellate court in saying, as matter of law, that he was experienced in the work he was doing, and had knowledge of the set-screw, and of the danger of placing his hand where he did while the machine was running, but his experience, and knowledge of the machine, is a question of fact for the jury.” The concealed set-screw was the controlling factor in that case, but the rule was approved as enunciated in Coombs v. New Bedford Cordage Co., 102 Mass. 585 , [ 3 Am. Rep. 506 ], as follows: “Whether is was possible for the plaintiff to have met with

In Mansfield v. Eagle Box etc. Co., 136 Cal. 622 , [ 69 Pac. 425 ], the plaintiff was injured while operating a rip-saw in a box factory. He was between eighteen and nineteen years of age and had worked in the factory some fifteen months before he was hurt, although having had little experience in running the rip-saw—that was not his job, but when short of help the superintendent made the plaintiff run the saw on which he was hurt. He was engaged in cutting boards when the accident occurred. "With his hand he was pushing a board on a table against and under the saw, which turned with a downward whirl toward him, when it seems the board slipped and his hand was caught by the saw. The court said: “Com-' mon prudence demanded that this inexperienced young man, commanded to work with a dangerous machine, with which he was not at all familiar, should have been fully and specifically instructed in the safest methods of doing the work. To put him to work without these instructions was negligence, and a jury might well have concluded from the facts in evidence that plaintiff’s crippled hand was the proximate result of such negligence.” No doubt, if categorically questioned, the plaintiff in that case would have answered that he knew a rip-saw was a dangerous implement and that if his hand came into contact with it while in motion he would get hurt, and, furthermore, that a board might slip or get caught in "such a way as to throw his hand against the saw, as any intelligent youth of his age and experience would have some knowledge of these things, but the court properly held, under the circumstances, that it was proper for the jury to determine whether, on account of its failure to caution and

In Clark v. Tulare Lake Dredging Co., 14 Cal. App. 414 , [ 112 Pac. 564 ], it was held by this court, in a case wherein a bright boy of sixteen and a half years lost his life, that “the burden was upon the defendant to show that those in authority over the dredger not only warned the boy of the danger attendant upon the discharge of the duties of a ‘ deck hand"’ having charge of the principal machinery of the dredger, but also to show that if such warning was given it was so given that the deceased fully appreciated and realized the danger by which he was surrounded.” Therein many cases are cited, which may be consulted with profit, illustrating the principle so aptly stated in Foley v. California Horseshoe Co., 115 Cal. 184 , [ 56 Am. St. Rep. 87 , 47 Pac. 42 ], that “The conduct of minors is to be judged in accordance with the limited knowledge, experience and judgment which they possess when called upon to act, and it must, from the nature of the case, be a question of fact .for the jury, rather than .of law for the court, to say whether or not, in the performance of a given task, the child duly exercised such judgment as he possessed, taking into consideration his years, his experience and his ability.”

We deem it unnecessary to notice other citations of respondent, wherein, with no stronger showing than this, it was held that a case was presented for the jury. Indeed, the number of circumstances here that might properly be considered factors in the perilous situation, emphasized with peculiar force the imperative duty of defendant to warn and instruct plaintiff. Their relative importance we may not be able to determine, we cannot say how much each contributed to the injury, but it is reasonably certain that the fact that plaintiff, a minor and somewhat crippled from a prior accident, in an emergency, was directed in a peremptory manner by his foreman to do a special perilous task outside of his ordinary employment in a place rendered dangerous not only by its location and the position of the ladder but by the rapid movement of the machinery and the presence of the projecting set-screws, presents a case quite unusual in its cumulative effect in favor of respondent’s position.

Respondent, in his brief, sets out all the special verdicts with categorical answers, from which it appears, as claimed by him, that the jury positively answered questions which covered all the material issues of the case, viz.: “That plaintiff was inexperienced; that he did not appreciate the dangers of his task; that his task was dangerous; that defendant did not instruct- him as to the danger; that defendant failed to use ordinary care to instruct him as to such danger; that plaintiff’s injury was caused by the negligence of defendant; that defendant knew that plaintiff was inexperienced; that plaintiff was injured by the accident; that such injuries were permanent; and that plaintiff did not have sufficient intelligence and understanding, in view of all the facts of the case, to know the danger of his task.” Other questions, covering a part of the same ground, were answered: “We believe so,” “Not according to the evidence,” “We think not,” “The preponderance of the evidence answers affirmatively,” and “No, we think not.” The duplication arose from the fact that the court submitted questions proposed by both plaintiff and defendant. The court might better have rejected some of the questions, but it is perfectly apparent that thus far no inconsistency is shown, nor anything of which appellant can complain. In other words, the jury having answered positively that the defendant was negligent, the finding would not be affected nor would either party be prejudiced by the answer to another question of the same import that “The preponderance of the evidence answers affirmatively” or “We believe so.” The same thing is manifestly true as to the questions

Other questions and answers to which appellant apparently attaches more importance are as follows: 1. “Q. What was the proximate cause of the accident and injury complained of by plaintiff? A. The proximate cause of the accident and injury lay in the fact that the boy was ordered to do a duty outside of his regular work, and was caught by the revolving shaft and set-screws.” 2. “Q. Was plaintiff’s injury due to the failure of defendant to warn or instruct plaintiff as to the danger of his employment ? A. It seems to be due to the defendant’s failure to warn plaintiff and the fact that he was doing something outside of his regular work.” 3. “Q. Was the accident and injury complained of caused by the negligence of the defendant in furnishing a defective ladder for the use of plaintiff ? A. We believe the ladder should have had spikes and hooks.” 4. “Q. Was the accident and injury complained of caused by the negligence of defendant in operating the shafting and coupling described in the amended complaint with projecting screws? A. We so believe.” As to the foregoing, it may be said generally that, considering the number and character of the questions submitted to the jury, it is surprising that the answers are not confusing and it is clear that, when properly construed, they are entirely consistent with the general verdict. No. 1 should not have been submitted and it should be disregarded, as it involved a question of law. “To permit the jury to return conclusions of law rather than statements of fact would defeat the manifest purpose of the statute. Such conclusions are to be disregarded. They cannot be considered in determining the. sufficiency of the verdict.” (Clementson, p. 116.) Again, it is quite apparent that the jurors were not accustomed to the refinements of the law, and being men, presumably, of average intelligence and disposed to look at a question from a practical common-sense standpoint, the)'- naturally concluded that various circumstances contributed to the injury and they

The instructions seem to have covered every phase of the legal propositions involved in the case and we find in them no substantial error. The concluding clause of one, to which appellant objects, is as follows: “I charge you that, as to the degree of care to be exercised by the servant, you may consider the fact, if such be the fact, that such servant was acting under the direct order of his employer.” This does not

“It is quite obvious that the fact that the servant has been ordered into a position of danger by his master or superior is an element to be considered in determining whether he has exercised ordinary care.” (Thompson on Negligence, see. 5379. See, also, Labatt, sec. 439, and 26 Cyc., pp. 1221, 1245 and 1272.)

Objection is al§o made to the following instruction: “If you find that the task at which the plaintiff was working when the accident occurred was, under all the circumstances of the case, one of special danger, then I charge you that such knowledge of danger as plaintiff may have acquired at the usual tasks of his employment does not necessarily raise the presumption that he knew of such special danger. A servant directed to undertake work outside of that which he is engaged to do, is not presumed to be aware of its peculiar risks, and therefore if the master does not fully explain them to the servant before putting him at such new work, the servant is entitled to assume that it has no greater risk than those which attach to his regular work.” This manifestly does not assume that there was any special danger as the instruction is hypothetical in that respect. It does not assume that plaintiff’s only source of knowledge was that acquired from his usual tasks

Some criticism is made of two or three other instructions but we do not think it merits special attention. It may be said, also, that, after an examination of the rulings complained of as to the admissibility of evidence, it appears reasonably certain that if any of them was erroneous the result could not possibly have been affected thereby to the prejudice of appellant.

We think no sufficient reasons exist for interference with the action of the lower court and the judgment and order are therefore affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 28, 1918, and the following opinion then rendered thereon:

In its petition for rehearing, appellant manifests a degree of disappointment that in the original opinion we failed to discuss specifically some of the. assignments of error as to the instructions. The constraint of custom and propriety as to the elaboration of judicial opinions, no doubt, is quite obvious to the learned counsel, and we think it is hardly necessary to assure them that we examined, as carefully as we could, not only the exhaustive briefs but the whole of the transcript in the case. Our conclusion, however, was and is that, viewing the entire record, we cannot say that any prejudicial error was committed.

The petition is denied.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1913.