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to cause of relapse, “honestly draw different conclusions.” The present case would seem therefore to be ruled by the settled principle affirmed by Mr. Justice Brewer in Richmond & Danville Rd. Co. v. Powers, 149 U. S. 43, 45, 13 Sup. Ct. 748, 37 L. Ed. 642, and referred to by him in the Patton Case. Furthermore, in Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed. 463, 477, 20 C. C. A. 596, 609, Judge Lurton, in stating the difference between the functions of the trial judge in granting a motion for a new trial and in passing upon a motion to direct a verdict, said: “In the latter case we think he cannot properly undertake to weigh the evidence. His duty is to take that view of the evidence most favorable to the party against whom it is moved to direct a verdict, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law a verdict might be found for the party having the onus.”
And in the recent case of G. Rochford, etc., v. Pennsylvania Co., 174 Fed. 81, 84, the same learned judge, speaking for the court, said:
“If the plaintiff has produced material evidence, sufficient, if believed and uncontradicted, to warrant a verdict, no amount of contradictory evidence will authorize the trial judge to take the question of its effect and weight away from the jury.”
We are constrained to hold that the court erred in withdrawing the evidence mentioned from the jury, and that the judgment in favor of the plaintiffs below must be reversed and a new trial awarded for that reason. It follows that the assignments of error presented by the defendants below must fall with the judgment of which they complain. The costs of both proceedings in error in this court will be paid by defendants.
FRANK UNNEWEIIR CO. v. STANDARD LIFE & ACCIDENT INS. CO.
1. MASTER AND SERVANT (§ 95*)—DANGEROUS EMPLOYMENT—MINors.
*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
his duty being to stand some distance away from it and carry off the boards of veneer as they were sawed off. On several occasions, however, he voluntarily attempted to stop the saw, and was directed by adult coemployés not to do so, that he would get hurt, and on the occasion of his injury he attempted to stop the saw in this way, and one of his arms was caught in the teeth and injured. Held, that the child was employed in a position whereby his life or limb was endangered in violation of Rev. St. Ohio, § 6986–1, and hence a master, after being cast in an action for damages sustained by the child, could not recover over against an indemnity insurance company on a policy exempting the company from liability for injuries suffered by any person employed in violation of law as to age.
[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 437.*]
In Error to the Circuit Court of the United States for the Southern District of Ohio.
Action by the Frank Unnewehr Company against the Standard Life & Accident Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Alfred Mack, for plaintiff in error.
Before LURTON, SEVERENS, and WARRINGTON, Circuit
WARRINGTON, Circuit Judge. The question in this case stated broadly is whether, in view of an Ohio statute (Rev. St. Ohio, § 6986–1) forbidding placing a child under the age of 16 years “at employment whereby its life or limb is endangered,” an employer can knowingly put a child under that age at work within close proximity to a large circular saw, and then recover from an indemnity insurance company the amount of a judgment paid by the employer to the child for injuries suffered from the saw while not engaged in line of duty, notwithstanding a condition of the insurance policy which exempts the Company from liability to the insured arising out of injuries “suffered by any person employed in violation of law as to age.”
The case was brought in the court below by plaintiff, Unnewehr Company, against defendant, an insurance company, upon a policy of Insurance. Plaintiff was engaged in the business of manufacturing Veneer and thin lumber at its plant in Cincinnati. By the policy plain: tiff was indemnified against loss imposed by law for damages on account of bodily injuries suffered through operation of its factory by any of its employés while within its factory during a fixed period. Jurisdiction was obtained through diversity of citizenship. A judgment and costs for $2,587.96 had been recovered against plaintiff in another suit by one Luther Watson, who, on November 14, 1907, as alleged in the petition in the present case, “was then in the employ of Plaintiff as off-bearer (to wit, carrying away pieces of thin lumber after same had been sawed) at a veneer saw,” and who then “sustained bodily injuries accidentally suffered by reason of the operation of the business or trade of the plaintiff.” The defense, now relied on is in substance that at the time Watson received his injuries he was a child Ander the age of 16 years, and engaged “at employment whereby its life or limb was endangered” within the meaning of section 6986–1
"For other cases see same topic & 3 NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 176 F.—2
of the Revised Statutes of Ohio, and that defendant had indemnified
plaintiff was at an employment whereby his life or limb was in danger, and therefore I instruct the jury to return a verdict in favor of the defendant.”
It was agreed that plaintiff received the policy of insurance; that it gave defendant notice of the accident to Watson and of the bringing of his suit by his next friend; that Watson was at the time of the injury in plaintiff's employ and that the employment and the work carried on were covered by the policy; that the defense to the suit brought by the boy was conducted jointly by the attorneys of plaintiff and defendant, but without prejudice to the rights of either; that judgment and costs were recovered in the sum of $2,587.96; that by agreement then made by the parties to the present suit no proceedings in error were taken and the judgment and costs were paid by plaintiff to Watson, and that defendant refused to reimburse plaintiff; also that, previous to entering upon his employment, Watson placed with the plaintiff an “age and schooling certificate as required by the laws of Ohio,” from which it appears that he was born July 9, 1892, and that at the date of the certificate, July 31, 1907, he was four feet six inches in height, and that he could read at sight and write legibly simple English sentences.
The statute then in force was section 6986–1, enacted April 8, 1890 (87 Ohio Laws, p. 161), which provided:
“No child under the age of sixteen years shall be employed by any person, firm or corporation in this state, at employment whereby its life or limb is
endangered, or its health is likely to be injured, or its morals may be depraved by such employment.”
The ultimate inquiry is whether the service assigned to Watson was dangerous to life or limb.
The veneer saw is circular in form, and with its attachments is 68 inches in diameter. Its weight is about 1,000 pounds. It has an axle resting upon bearings near the floor of the room in which it is operated; about 45 inches of its diameter being above the floor. It is operated by steam power applied through belts and shafting. When once set in motion, the power is removed by pulling a rope attached to an idler and so loosening the driving belt; but, owing to the weight and rate of speed of the saw, it continues to revolve for some time. The method adopted for stopping the saw after release from the power was to “jam” a piece of scantling between the edge of the floor and the disk of the saw. The boy Watson attempted to stop the saw in this way, and one of his arms was caught in the teeth of the saw and so injured as to require amputation near the shoulder.
It is agreed that it “was no part of his duties either to start or stop the saw.” It was further agreed that the operator of the veneer saw,
Stevens, would testify that on two or three occasions he found “that the boy Watson had run around and tried to stop the saw by putting in a stick”; that instead of giving him orders to do so, whenever he did stop the saw he, Stevens, told him to “stop monkeying with the machine"; also that the head sawyer, Smith, would testify that he had supervision of two saws, the one operated by Stevens and the other by himself; that he also noticed that as soon as the operator would stop the machine “the boy would run around with the stick and stop the saw”; that he told him “on at least half a dozen occasions not to do this, as he would get hurt sure.” The contention made is that plaintiff did not violate the statute in question, because Watson was not employed to stop the saw, but was employed as an off-bearer of the thin boards as they came from the saw, and that, if he had confined himself to the performance of the duties assigned to him, he could not have been hurt. A better understanding of this contention and of the situation will be gained by further description. The relative positions of Stevens, the operator, and Watson, the off-bearer, with respect to the saw during much of the time that they were at work were about the same. In photographic views offered to display the disk of the saw and side of the carriage Stevens is represented as standing at the right and Watson at the left of the edge of the saw, and each about five feet away from it. Stevens applied and turned off the power by means of a rope, and by levers operated the carriage bearing the log and adjusted the latter to the saw. Watson would alternately sit and stand at the end of a spreader 51 inches long and 30% inches high. The spreader extended in front of the saw, and was used for separating the boards from the log as the sawing progressed. This enabled Watson to receive and remove the boards. The conclusion of the court below upon the facts was:
"Two persons were necessary to operate the saw. One was the man SteWells, who managed the carriage and brought the log into contact with the Saw, and the other was the boy, who steadied the boards after they passed a given point, as they were sawed from the log, and finally bore them away to a pile. His services were as necessary as those of Stevens.”
The claim made in behalf of plaintiff is that the language of the statute forbidding placing a child under the age of 16 years “at employment whereby its life or limb is endangered” limited the inhibition to service that could not be performed without danger to life or limb; and hence that no employment would be regarded as dangerous to life or limb of the child unless it involved operating or assisting in operating a dangerous machine. But does this take into account either . import of the words of the statute, or the purpose of such legisla1On :
We do not find it necessary to consider whether the duty imposed upon Watson as off-bearer literally involved operating or assisting to Operate the veneer saw. It is hard to conceive that an adult, much less à child, could reasonably be expected at all times to keep all parts of his body within the bounds set for this off-bearer. He was for a substantial portion of his time required to stand and work within five feet of this obviously dangerous saw. An unguarded step or movement resulting in an accidental fall might bring him into contact with the saw. He was within easy range of injury in the event of breakage of the saw or other mishap, due to its great size and speed. The inevitable strain of such a position and the indifference to danger that would naturally follow cannot escape notice; for these conditions and also childish curiosity must have combined to induce Watson to rush away from his position so frequently in spite of admonition and stop the saw. Enough appears in the record to suggest some comparison between the danger attending the work of the operator and that of the offbearer. We are unable to see how manipulation of the rope for turning on and shutting off power in operating the veneer saw, or how working the contrivances used for moving the carriage bearing the log and adjusting the latter to the saw, could be attended with danger to life or limb exceeding that incurred by the off-bearer while discharging his regular duties. It does not appear from the photographs or from anything we have found in the record that the operator is required to make nearer approach to the saw while in operation than the off-bearer is; and it would seem that the duties of the person operating the veneer saw are probably lessened by the fact that the head sawyer has supervision of the veneer saw as well as of the saw that he operates personally. Is it to be said that the inhibition of the statute would be applied to the one position and withheld from the other? The accepted meaning of “endanger” embraces exposure to injury coming from without as well as from within a given place or object. It is conceivable that there are many instances where attendants may incur danger quite equal to that of the operators themselves; but it is hard to conceive of a legislative purpose to furnish protection against only one of such dangers. It is to be regretted that the Supreme Court of Ohio has not had occasion to construe either the old act or the new one (passed February 28, 1908; 99 Ohio Laws, p. 30). The only mention made of either act is that found in Jacobs v. Fuller & Hutsinpillar Co., 67 Ohio St. 70, 65 N. E. 617, 65 L. R. A. 833, in which that court held that it was error in the trial court to instruct the jury that it could consider the employment of plaintiff, a boy under the age of 16 years, a violation of the statute, as a circumstance bearing upon the alleged negligence of his employer. Under this rule, violation of the act may be conceded and only its relevance to the issue of negligence denied. Reference is made to Breckinridge v. Regan, 22 Ohio Cir. Ct. R. 71. A girl of 15 years had been employed by plaintiff to operate a machine used for stamping and cutting tin. The court said that “it may be regarded as a machine at least somewhat dangerous.” Although no question was made in the trial below concerning the act now in question, yet the reviewing court upon suggestion of counsel considered the bearing of defendant's violation of the act upon the question of its negligence. It is true that in applying the statute to the facts of that case the court regarded the act as indicating that in the judgment of the Legislature children of the age of plaintiff “are unfit by reason of