Rosenberg v. Durfee
Before: Foote
Synopsis
Negligence — Inducing Child to Ride upon Sweep.— Liability of Person in Charge. .— Inviting and permitting a child eight years old to ride alone, in circumstances of danger, upon a sweep or pole drawn by a horse, and used to propel machinery for pumping water, in consequence of which the child is injured, is negligence on the part of the person in charge of the sweep.
Id. —Liability of Owner of Sweep. —A verdict against the owner of the sweep will he sustained if it appears that he, knowing that his son was in charge of the sweep at the time of the injury, and that the child was riding upon the sweep alone, in circumstances of danger, at the request of his son, permitted her to remain thus exposed, when he could have prevented it, though he may have cautioned the child to he careful, and though the child may have said there was no danger.
Id.—Indulgence op Child—Motive Immaterial.—The fact that the child was a favorite with the owner of the machine and his son, and that their want of care was the result of a desire to be indulgent to her, does not excuse them from exercising the care required by law to prevent the child from placing herself in danger.
Id. — Contributory Negligence of Child.—Instruction.—An instruction to the jury “that a child of such tender years and immature judgment as to be incapable of knowing, comprehending, and measuring the danger to which it is exposed, and of exercising the necessary precaution in guarding against it, cannot be charged with negligence in exposing itself to the threatened danger,” and that in determining the question in connection with the case, they “ must consider the age and sex, and all the conditions surrounding the plaintiff at the date of the injury, as disclosed by the evidence,” is proper, and does not assume that the machinery causing the injury was dangerous, or tend to mislead the jury upon the question of contributory negligence.
Id.— Instruction as to Evidence of Negligence. —An instruction to the effect that if the sweep was a dangerous place, and if the defendants knowingly permitted the child to ride upon it in circumstances of danger, when its parents or other guardians were not present, if the child was too young to comprehend the danger, and was injured by the machinery, it would be evidence of negligence, is not mislea ling, and does not purport to tell the jury that the injury was of itself evidence of negligence, unaccompanied by the state of facts culminating in the injury.
Foote, C. This action is to recover damages caused to the plaintiff, a child eight years of age, alleged to have resulted from the carelessness of the defendants, in negligently inducing and permitting her “to sit upon a sweep or narrow pole drawn by a horse to propel the machinery for pumping water, then being propelled by and under the control and for the use and benefit of defendants.”
It is alleged further in the complaint that the “sweep in its circuit passed above and near to cog-wheels and other portions of said machinery then in motion, thereby exposing plaintiff to the danger of being crushed and mangled therein if she accidentally fell or in any man[547]ner was dislodged” from the sweep, and was precipitated upon the machinery; that the defendants well knew of the danger to which the child of tender years was thus exposed, yet they knowingly, carelessly, and negligently suffered her to remain alone on said sweep with no person to guard her, exposed to the danger aforesaid; and that by reason thereof plaintiff fell or was precipitated upon said machinery then in motion, and her left hand was caught, mangled, and lacerated therein, causing the loss of three fingers therefrom, thereby maiming and crippling the plaintiff permanently.”
The defendants demurred to the complaint. The demurrer was overruled, an answer filed, and upon the trial a jury returned a verdict for the plaintiff, and assessed her damages at $1,750 and costs.
Judgment was rendered upon the verdict, from which this appeal is taken, and an order denying defendants’ motion for a new trial.
There is no dispute but that the child was injured, and suffered the loss of her fingers, while on the sweep and falling upon the machinery.
The defendants' counsel states that the child was seated upon the lever or sweep, and while riding around upon it she lost her balance, and endeavoring to recover herself threw her left hand into the cog-wheel, “and unfortunately just at that moment it was passing under the smaller wheel, when it was caught, and three of her fingers crushed so that they had to be removed.”
The defendant Charles Durfee, the son of the other defendant, was in charge of the machinery at the time of the injury; this the father knew, and also that the child was riding around upon the sweep.
A part of the testimony of the child is, that “I was sitting on the sweep. I was going around and lost my balance, and my hand got in the wheel. I was at the cow-corral before I went on the sweep.”
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