Fort Smith Rim & Bow Co. v. Qualls , 146 Ark. 475 ( 1920 )

Smith, J.

Samuel Qualls, sued by his father as next friend, to recover damages for an injury sustained by him while in the employment of appellant company. The first application made by the father for employment was refused on account of his age. Thereafter the boy secured a permit from the Department of Labor, authorizing appellant to employ the boy. The boy was placed at work at what is known as off-bearing from a circular rip-saw, and according to appellant the boy had no duties except to carry away pieces of timber after they had come through the saw, and it was denied that the boy had anything whatever to do with the operation of the saw.

The testimony shows that, while engaged in adjusting the belt under the circular rip-saw machine, the hoy’s right hand came into contact with the moving teeth of the rip-saw, which cut off all four of his fingers and the thumb of the right hand and the palm of that hand.

According to the testimony offered on behalf of the plaintiff, the boy was placed under the control of Rick-man, the operator of the saw, and told to do what Rick-man directed, and pursuant to Rickman’s direction he was engaged in adjusting the belt at the time of his injury.

The injury occurred on July 24, 1919, and the boy was sixteen years old on January 5, 1920. As his sixteenth was his nearest birthday, the contention is made that he was not under1 sixteen years of age within the meaning of the act of the Legislature under which this suit was brought.

There was a verdict and judgment for the plaintiff, from which is this appeal.

The instructions in the case were numerous and in some respects conflicting. This conflict grows out of the fact that some of the instructions declared the common-law liability of the master to an inexperienced servant, while other instructions were evidently based upon Initiative Act No. 1, declared effective by the proclamation of the Governor dated October 13, 1914, and found in the Acts of 1915 at page 1505. In other words, a recovery was sought under the Initiative Act, yet it was not solely relied upon. The result of this action is that certain instructions submitted the defenses of assumption of risk and contribuory negligence, while other instructions excluded those defenses.

It was error to do this, but no prejudice resulted therefrom. We have, in the opinion handed down this day in the case of Terry Dairy Co. v. Nalley, ante p. 448, construed the Initiative Act, and under the construction there given it we have held that the employment of a minor in violation of the statute is, itself, negligence per se, and if injury results to the minor .the defenses of assumption of risk and contributory negligence are not available. If, therefore, the boy’s injury occurred while appellant was violating the statute, no prejudice resulted from the fact that some of the instructions submitted the defenses of contributory negligence, and others that of assumption of risk, because those instructions were more favorable to. appellant than they should have been. It was not error to make all the instructions more favorable than they should have been because some of them were, and if appellant was not entitled to these defenses there was no error in giving instructions which eliminated them.

It is undisputed that the boy had not attained his sixteenth birthday, and appellant is mistaken in its contention that the act is not applicable because the boy’s nearest birthday was his sixteenth. One is under sixteen until he reaches his sixteenth birthday. In the case of Gibson v. People, 99 Pac. 333, the Supreme Court of Colorado had occasion to define the phrase, “sixteen years of age and under, ’ ’ and held that these words ex - eludes children who have passed beyond their sixteenth birthday, as a child is sixteen years of age on the sixteenth anniversary of his birth, and that thereafter the child is over sixteen years of age, and that one could not be convicted of contributing to the delinquency of a child who had passed his sixteenth birthday under a statute using that phrase. See, also, 1 A. & E. Enc. of Law, 927, and cases there cited.

At the request of appellant the court gave the following instructions:

“3. If the plaintiff was injured solely because of his leaving his regular work, -and because of his effort to put a belt on the saw, and if the plaintiff had sufficient knowledge to realize the dangers in doing that work, and if he was not employed to do that work, and if that was the sole cause of his injury, then he can not recover.

“3-A. If the plaintiff, Samuel Qualls, was employed by the defendant to off-bear timbers from the rip-saw, and if he was not employed to assist in the operation of the rip-saw, and had nothing whatever to do with its bands and belts, and the setting of the same, and if he voluntarily and without being so directed to do, by the foreman, or any one over him, attempted to place the belt on the pulley and was injured thereby, then he can not recover on the ground that his injury was due to any violation of the law.

“4. If the plaintiff was not employed to work at the rip-saw, and was not employed to work at the belts by some one having authority to employ him, and if he was not employed in violation of law, then the question arises, if the facts warrant it, as to whether the plaintiff assumed the risk. If he was a boy of ordinary intelligence, and if he understood the dangers incident to the work which he was doing, and if he voluntarily, and without being told to do so, attempted to change a belt and place it on the pulley, and if he understood the nature of the machinery and the work and in attempting to place said belt on the pulley knowing the dangers, and was cut, and if he understood its dangers, then he can not recover.”

Under the interpretation of the Initiative Act given by us in the case of Terry Dairy Co. v. Nalley, supra, appellant could not have asked instructions more favorable. The instructions set out above were all the instructions requested by appellant except instructions numbered 1 and 2. Instruction number 1 directed a verdict in favor of appellant. Instruction numbered 2 substantially declared the law as stated in instructions 3, 3-A and 4, set out above, except that it contains the statement that “under the laws of Arkansas in force at the time the plaintiff was hurt, towit, on July 24, 1919, the defendant had the right to employ a minor under the age of sixteen years of age at the work at which said minor was employed.” It would have been proper to refuse this instruction because of this statement. It assumed, as a fact, one of the disputed questions in the case, that is, that the boy had no duty to perform about the saw, or the belts, while the evidence on that question is sharply conflicting.

The testimony on behalf of the boy shows that he was employed with directions to obey orders received from Rickman, and that he was injured while adjusting the belt pursuant to Rickman’s order, and if this be true a case of liability under the - statute was made.

No error appearing the judgment is affirmed.