Sheehan v. Hammond

COOPER, J.

This action was brought by plaintiff, a minor, aged thirteen years, through his guardian ad litem, to recover damages for personal injuries claimed to have resulted from the negligence of defendant in furnishing plaintiff insecure and unsafe appliances with which to perform the work to which he was assigned, and in requiring him to do certain dangerous and hazardous work concerning which he had had no experience or knowledge, without instructing him as to the dangers incident to the work and the dangerous character of the machinery and appliances. The case was tried before a jury, and a verdict rendered for plaintiff in the sum of $1,000. Defendant made a motion for a new trial, which was denied, and this appeal is from the order denying the motion, and from the judgment.

Defendant claims that the judge before whom the trial was proceeding publicly denounced him through certain articles in three leading newspapers of San Francisco, and thus injured him and his defense in the eyes of the jury. The facts that led up to the publication of the articles in the papers may be briefly stated as follows: The plaintiff was employed by defendant to polish telephone boxes by holding them against a rapidly revolving wheel covered with sandpaper. The wheel revolved close to a table, which came up to about the center of the wheel and which was about a quarter to half an inch from the revolving wheel. Plaintiff claimed that he was injured while engaged in his ordinary business of polishing a telephone box. Defendant claimed that as a matter of fact at the time of the injury the plaintiff was not engaged in polishing a telephone box, but was, of his own volition, engaged in sharpening a stick on the wheel, which was dangerous, and that the injury was caused by plaintiff’s fingers catching in

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between the stick and the wheel and being pulled in between the table and the revolving wheel. Defendant introduced evidence tending to show that plaintiff was so engaged in sharpening a stick on the wheel. One witness testified that a few moments before the accident he saw plaintiff holding a stick against the wheel. Two or three other witnesses testified to seeing the stick under the table partly sharpened, and one witness testified to seeing blood upon the stick. Defendant called Walter Fahey, a boy sixteen years of age, a companion of plaintiff, who was working for defendant at another table about five feet away from plaintiff, at the time the plaintiff was injured. Fahey testified that plaintiff was attempting to sharpen a stick against the wheel, and that the wheel drew the end of the stick down between it and the table, thereby throwing the other end up against the wheel, and thus catching the plaintiff’s hand between the stick and' the wheel, causing the injuries to plaintiff. Upon his cross-examination Fahey testified that the evidence given by him in the direct examination was false, and had been given at the solicitation of and under the direction of defendant, that plaintiff did not have a stick in his hand, and was not engaged in sharpening a stick at the time of the injury, but that plaintiff was engaged in his ordinary work polishing a telephone box. This statement of Fahey made in cross-examination was made in the afternoon of February 2d, and seems to have caused some excitement in the courtroom. The next morning, February 3d, before the trial was completed, the San Francisco ‘ Call, ’, the “Chronicle,” and the “Examiner” each had glaring headlines in regard to the matter, followed by a statement of the reporters’ views upon it. These articles were headed: “Perjures Word to Hold Place. Boy Witness Makes a Startling Disclosure on the Stand. Says Capitalist Hammond Suborned Him under Promise of a Position.” And: “Mantón E. Hammond Wanted Boy Witness to Swear Falsely. Gave Him Employment for Untruthful Story. Cross-Examination Brings out the Truth in a Damage Suit. Judge Graham may Ask the Grand Jury to Investigate the Serious Charge Made.” And: “Promised Position for Testifying Falsely. Reason Given by Walter Fey for the Sudden and Complete Change in His Evidence in a Suit for Damages. Declares That Mantón