The record-union., 1891-02-07
SUPREME COURT DECISIONS.
Filled January 90 1901 l

Tiled January 80, 1871
Appeal from Superior Court, Los An
geles County-Walter Van Dyke, Judge.
For appellants, Chapman d Hendrick.
For respondent, Galbreth Il Morrison.
DEPARTMENT ONE.
HANNAH L. ROSENBERG by
her guardian, Plaintiff and
Respondent,
VS.. NO. l5,S 1Z
r. d. AND CHARLES c. DUR
FREE, Defendants and APP
pellants.
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 neg
ligently inducing and permitting her ito
sit upon a sweep or narrow pole
drawn bya horse to propel the machinery
for pumping water, then being propelled
by and under the control and for the use
and benefit of defendants CTR. fol. So
It is alleged further in the complaint
that the ''sweep in its circuit passed above
and near TO cogwheels and other por-
tons 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 manner was
dislodged'' from the sweep, and was pre-
cipitated 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 negli-
gently 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 manning and crippling the
plaintiff permanently" (Tr. fols. 8, Z, 81
The defendants demurred to the COM
plant. The demurrer was overruled, an
answer filed, and upon the trial jury re-
turned a verdict for the plaintiff, and
assessed her damages at Sl,750 and costs.
Judgment was rendered upon the ver-
dict, 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 eudeavoring to recover
herself, threw her left hand into the cog
wheel, 'sand unfortunately just at that
| moment il was passing under the smaller
wheel, when 1t was caught and three
| of her fingers crushed so that they had TO
| be removed" appellants brief, p. 5.)
The defendant Charles Durfree, 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: Il was sitting on the sweep. / was
going around and lost my balance, and
my hand got in the wheel. Twas at the
COW corral before L went on the sweep"
| Trans, fol. So "Question-How far away
was that from the sweep? Answer-About
half an acre, not as much as that. Charley
| (meaning young Durfree( called me and
said come and take ride. First | didn't
hear him, and said, .What?' Then he
said it again. Come and ride, Hannah
and I went over to the sweep, and / saw
| Mr.. Durfree (meaning the father, the other
defendant), and he had a shovel in his
hand; hewas standing there watching me
! go over. When ! was getting on the
| sweep he said, Hannah, look out; there
might be some danger to your hands and
your arms and | said, oh, no, there
WON'T He was in the corn when
he said that, and then l went on
| and had gone round several times,
| and l made the horse go when
l was on there, and then l lost my
balance First I dropped my hat, and
| then l said, Charley, stop the horse; 1
want to get my, hat And he said, Pick
| it up the next time round | tried to
pick it up, and lost my balance, and my
| hand caught in the wheel of the cog. l
first got on the sweep near the horse, and
| Charley said, Move up toward the big
wheel and machinery The way / hap
pened to lose my hat was the wind blew
| it off. When l came round, and went to
pick up my hat, Charley made some
motion, and the horse jerked, and that is
| the way / lost my balance. The horses
name is Doc. My hand got caught in the
| wheel. / didn't fall Off the sweep, and
Charley took me off and carried me to the
house. Some of the fingers were cut and
the ends of the fingers dropped. Charley
| took me to the house. He didn't say
anything that / remember. Mamma
| hollered and said, Charley, you have
crippled my little girl for life" Grams,
fol. 50, ct seq
The child is the daughter of domestic
servant of the defendants.
1t is claimed by the defendants that the
evidence is utterly insufficient to prove
that the machinery is at all dangerous.
That there is no proof that the defendants
were guilty of any negligence. In this
connection it is further said that the evil
dence of the child is contradictory, since
upon former trial she testified as to q
material matter, differently from what
she did on this trial, and that, therefore
her testimony is to be disregarded, and
that of the defendants, in contradiction O.
it, received, in which event it is commended
the verdict is unsupported by evidence.
We do not perceive any conflict in the
child's evidence, as contended for. Hel
testimony on the last trial was somewha
fuller than upon the first, but there was
no contradiction by one of anything il
the other, and nothing to show any unre
liability on her part; in fact she was il
many respects sustained by the evidenct
of the defendants. 1t does appear from
the evidence that the child was favorite
both with the father and son, defendants
and that the want of care which they ex
ercised in permitting young child Xix
this little girl to get upon the sweep an,