INFANTS — NEGLIGENCE—MASTER AND SERVANT.

[Lucas Circuit Court,

January 17, 1898.]

#### Harry Hinds, an Infant, by George A. Hinds, His Next Friend, v. The E. P. Breckenridge Co.

Injuries Received by a Minor While in Search of Employment.

The plaintiff, a hoy eleven years old, visited defendant’s manufacturing establishment in search of employment, and while there sustained an injury for which he seeks to recover: *Held,*that the only duty owed by defendant to the child while in its establishment, was to see that no injury resulted to him from any negligence, either of omission or commission on the part of defendant and its servants, that was gross or wanton in character; and this measured by the boy’s age and understanding and surroundings.

Norris, J.

The plaintiff and defendant in error were respectively plaintiff and defendant below. For his cause of action the plaintiff says that on the 25th of June, 1895, the defendant used in its manufacturing establishment in this city a freight elevator which ran and was operated from the basement of the building to the top floor,which was the fourth story. That it was used to carry both people and freight from one floor to another; that the elevator was put in motion by the movement of a cable that hung through it perpendicularly. The safety of persons who might be in this elevator required that one of competent knowledge and judgment should have charge of and operate it, and that it should be equipped with proper appliances so that it might not move until the operator, for that purpose, should properly move the cable. He says that there was no signal bell at the entrance of the elevator, at each floor, as there should have been, so that it was necessary for the person operating the elevator to step to the front of it and look up or down to ascertain to which floor the elevator was being called. That the elevator was defective and broken and suffered by defendant to remain so, in this: That the stop-knob or clamp at the first floor, used to stop the elevator, was displaced so that the elevator did not properly respond to the movement of the cable which was provided to stop and move it at each floor. That defendant knew of these defects and negligently, wrongfully and carelessly allowed the elevator to remain in this condition; of all of which the plaintiff was ignorant and had no means of ascertaining. He says that on the 25th of June he was eleven years old, and was employed by defendant to work in and around this elevator and was so working and thus acting in response to the orders of those who had authority over him and who were in charge of this factory. That he was not skilled in operating the elevator and had no knowledge of the danger to life and limb with which he was threatened when he was so employed and was not warned or instructed as to his duties or of the attendant danger. That notwithstanding all this, and well knowing the defects and dangers and want of knowledge and want of skill, and that he was only eleven years old, the defendant wrongfully and negligently allowed the plaintiff to be so employed, and that by reason of the premises, on the morning of the 25th of June, while so employed and moving the elevator, without plaintiff’s fault, his foot was caught between the elevator and first floor and was mangled and crushed, and that this very means by which he was hurt was one of the threatening and probable *232dangers of which he had no knowledge and of which it was the duty of defendant to warn him; and for this injury he seeks to recover.

The defendant answering says that on June 25, 1895, this plaintiff was not an employee of the defendant; that without the knowledge or consent of defendant he came into said factory and got onto said elevator and took hold of the cable and caused the elevator to move and at the same time stood with his foot extended over the edge of the elevator, and that while he was in this position the elevator ascended and caught his foot between the elevator and the floor and he thereby received the injury of which complaint is made. That all this was without the knowledge of defendant, and that having no knowledge of his presence there, it was powerless to prevent the injury. That defendant, when this boy entered the factory was taking efery reasonable means to prevent persons other than employees from entering the factory; that this plaintiff knew that and knew he was there without right and contrary to the orders of defendant; and all else in the petition defendant denies.

These allegations of the answer are denied in the reply.

The cause was tried in the court of common pleas of this county and a verdict for defendant was returned by the jury to which it was submitted. Plaintiff presented his motion for a new trial, which was not granted. Judgment was entered and error is here prosecuted to the proceedings in the court below.

The reasons urged in the motion for a new trial and the assignment of error in the petition in error in this court, are :

> Error in admitting evidence over the objection of plaintiff.

> Error in rejecting evidence offered by plaintiff, and in admitting evidence offered by defendant over plaintiff’s objection.

> Error in charging the jury.

> Error in refusing to charge as requested by plaintiff.

> Error in overruling motion for new trial.

Irregularities on the part of the court and misconduct upon the part of the jury.

That there has been new and material evidence discovered.

Surprise Occasioned by the testimony of one of plaintiff’s own witnesses, by reason of which he was prevented from having a fair trial, as assented in his motion and petition in error. That the verdict is not sustained by the weight of the evidence and is against the law.

All these grounds were not urged before us in the argument of the case and do not appear to be relied upon as reasons why the proceedings in the common pleas should be set aside. They will not therefore be seriously considered by this court as reasons for reversal. The errors which seems to be relied upon as fatal are, the rejection by the court of evidence offered by the plaintiff, and the receiving of evidence offered by defendant, over plaintiff’s objection. And that the verdict is not sustained by the weight of the evidence and is against the law of the case.

There were a few marginal notes in the bill of exceptions pointing out the parts of which the plaintiff complains. We have carefully gone through the record with those in view. And, wdthout noticing the objections here in detail, we will say that we failed to find wherein the court rejected testimony that was competent, or admitted testimony that did not bear upon and have pertinence to the issues, hence we discover no error in that regard.

As to whether the verdict is against the weight of the evidence and is contrary to the law of the case ? In the determination of this we have *233to look to the relations that existed between this boy and the defendant at the time this injury was sustained ; and right here it may be remarked that it does not appear that the defects in the elevator, which were recited in the petition and upon the existence of which allegations of negligence are based, contributed to the injury of this boy. The injury was occasioned by the boy’s foot coming between the moving elevator and the first floor. It is complained that the appliances by which the elevator was stopped were out of order so that they could not, without manipulation, be made to stop the elevator at the proper place when it reached the first floor. The testimony discloses that the plaintiff was hurt *before*the elevator had reached its stopping place at the first floor, and when it reached the place to stop at that floor it was too late to have prevented the injury— the injury ha*d already occurred. So, the fact that the elevator was defective, and for that reason could not be readily stopped even with the first floor, cannot be considered as contributing to plaintiff’s injury.

Was this little boy, at the time he was hurt, an employee of the defendant in error, as alleged in the petition ? ' He says — and he is corroborated by John Newton the elevator boy — that three or four days before the accident, Mr. Lowe, the day foreman, was asked by him whether he could give him a job at, the factory at the end of his school term. Lowe said he would see and in three or four days he should come around and find out. Newton says Lowe answered to come around when school was out and he would see if he had a job for him, but fixed no day for his coming. Of this conversation Lowe has no recollection, but it was probably in response to it that Harry went there. He came to the factory with Newton and asked Mr. Lowe if he could give him work. He was told by Lowe that Lowe had no place for him, but to see the night foreman and he might give him a job. The boy was not invited to go to this elevator by any one who had a right to place him there; but there lie went and there he staid until he was hurt. He did not attempt to see the night foreman and he did not see him. He made no further inquiry for work, was not put to work nor invited to go to work by anybody who had a right to place him at work, so that it might be claimed that he was an employee of the defendant, nor was he acting upon any duties assigned to him to perform when he was hurt. The little fellow at the time oí this accident was there as a trespasser, amusing himself by riding up and' down on this elevator. He went there to ask for work, and it was his duty to ask for work, and if refused, to depart. But he did neither he just staid there; he was not moved or impelled or caused to remain by any person who had a right to invite him to stajr; he just chose to stay, and his stay was unwarranted, and in doing so, he was, as the facts show, transgressing the rules of defendant and was in that sense a trespasser.

The injury which resulted to this boy might not fairly be anticipated as one likely to happen, from the nature of this machine and its use. It is true, and anybody could see and know that if one put his foot so as to have it caught between the elevator and and the ceiling, he would be injured. The boy himself swears that he was well aware of this; but it was a position so unlikely to be assumed by *one*riding *upon*the elevator that to anticipate it was not to anticipate a casuality that was liable to happen. The testimony shows that even when running the elevator it was not necessary to stand and be in front in order to see the other floors, but the top of the cab was open and the upper floors could be well seen without taking that position. This defendant had a right to have the *234elevator in its establishment — it was not only a convenience but a necessity. It is in the back part of an enclosed building, a guarded building as the record shows, not in sight and not easy of access — not a constant threat and menace, like the turn-table in the Stout case, or the torpedo in the Harriman case, or the mash tub in the Bellman case, inviting children to resort to it for amusement or pastime, and to maintain this elevator as defendant did maintain it was not negligence. The plaintiff not being an employee of defendant, it owed him none of the duties recited in the Corrigan case, in 46 O. S., and in no wise does the section of the statute in reference to the employment of children apply. To have the elevator was not negligence. To keep it in the condition it was in, so far as relates to this accident, was not negligence. To have the little boy come into its premises and ask for work, was not negligence. This was not an establishment wherein there was dangerous machinery, like a machine shop or a planing mill that when in motion threatens both employee and visitors. The most dangerous contrivance it had in use appears to have been this elevator. An elevator is not deemed to be a dangerous piece of machinery in the ordinary sense of the term; so that when this little boy went into the factory it would not suggest itself that due care for him, under the circumstances, demanded that he should be guarded and guided until he left, and. it was not a violent supposition on the part of the man kowe that this child should go away after he found no work. We think the jury was warranted in finding — as it probably did find — that nobody in the factory, who had charge, knew of his presence in the elevator and hence could not have even anticipated or been able to prevent the accident by sending him home. The boy came to the establishment for employment. It was his duty to ascertain whether or not there was work for him, and, if there was none it was his duty to depart’. The duty'and the only duty which the defendant owed to this boy, under the circumstances, was to see that no injury should befall him through the wanton carelessness of its employees, and that he should be safe from the result of any negligence upon its part or upon the part of its servants that amounted to bad faith, and all this measured by the boy’s age and his surroundings.

*Beard &*Beard, for plaintiff in error.

*E. W. Tolerton,*for defendant in error.

This injury, from all the facts which appear, seems to have been simply the result of a deplorable accident, occasioned by nobody’s fault but the fault of this little boy himself.

As to the refusals to charge, we find that such of the requests as were applicable to the issues, were substantially given! The charge as given fairly states the issues and fully covers the law of the case and we find no error to the prejudice of the plaintiff in error upon this record, and the case is affiirmed at the costs of the plaintiff in error and is remanded to the court of common pleas for execution. No penalty.