EVANS t. AMEItICAN IRON &
CO.
519
peaceable and adverse possesSion sba11' be held to have full title, precluding all claims."
It is not denied by the plaintiff that Hague had been in possession for the full statutory period, nor that he claimed title under deeds duly registered. But it is insisted that the proof should disclose the payment of taxes for that portion of the year 1887 ending with February 9th, in order to make the payment of taxes complete and effectual as a bar. The statute contemplates the payment of such taxes as were due and could have been paid. On the 9th February, 1887, the taxes for that year, under the laws of the state, were not due, nor could they have been paid until a much later period oLthe year. Hfl,gue had paid at that date all taxes which were due and payable, to-wit, for the years 1882, 1883, 1884, 1885, and 1886; and I must therefore hold that he had fully complied with the law in reference to the payment of taxes, and that he became invested with full title at that date. His subsequent laches in failing to pay the taxes would not inure to the benefit of tiff, for her right of action was debarred. See Spofford v. Bennett, 55 Tex. 293. Reference is also made to the case of Cantagrel v. Von Lupin, 58 Tex. 576, in support of the views here expressed. The facts in the Oantagrel 0aBe are quite similar to those involved in this suit. 'fhe law of the ease, as applied to the facts, being adverse to the plaintiff, it is my duty, gentlemen of the jury, to instruct you to find a verdict in favor of the defendants. ' ault, which was granted. NOTE BY
'J;'BB. CoUBT.. Upon reading the aboTe oharge, the plainWf moved for a non-
'
.
EVANS ". AMERICAN IRON
&
TuBE CO.
(CirewU Oourt, N. D. OMo, E. D. February Term, 1800.)
L
lUSTER AND SERVANT-NBGLIGENCE 011' MASTEB-UNLAWII'UL EMPLOYMENT 011' CHILD.
Under the Ohio statute making it a crime to employ in a factory a child uneler IS years old, it is only necessary, in a prosecution for its violation, to prove the em· ployment and defendant's knowledg-e of the child's age; but such proof is not, in itself, sufficent in a civil action for injuries sustained by the child through defen!!. ant's negligence. ' Where the employer of a cbild under 12 yeaTS of age furnishes him with a sate and suitable place to work, he is not liable for injuries sustained by the chil(l by reason of his voluntarily going about the factory and exposing himself to dangerous machinery, where the child is of such age and experience, and has sufficient knowl. edge of the machinery, to be able to appreciate its dangerous character. Such a child, if he is incapable, by reason of his youth and inexperience, of apprehending and appreciating the dangerous character of the machinery, 18 not a fellow-servant of the adult servants employed in the factory. " .
2.
SAME-CONTRIBUTORY NEGLIGENCE.
8.
SAME-FELLOW-SERVANTS.
Action by Owen Evans,guar,dian of William Lewis, against the ican Iron & Tube Company, for personal injuries sustained by said ward while in defendant's employ.
520
FEDERAl, ImpORTER,
vol. 42.
D. L.King, R. B. Murray, and A; J. Woolf, for plaintiff. Sanderson &- Norris, for defendant. RI01(:S, J., (charging jury.) This action was instituted by Owen Evans as guardian of William Lewis, to recover damages for injuries sustailled by him while in the employ of the defendant when he was under the age of 12 'years. The petition avers that said boy went into the employ ofdefendant, July, 1887, and continued in such employ until November 18, 1887, when he was injured by the negligence of defendant's boss in ordering him· to a place of danger to do labor of a hazardous character, near machinery which was not properly protected; and that defendant placed said boy in this dangerous place without properly cautioning him as to the dangerl" to which he was exposed. These are the main allegations which you will find it necessary to investigate under the issues made. I mayaay at the outset that the case is to be tried upon the testimony as presented befolle you, and neither sympathy for the plaintiff's ward on the one hand, nor prejudice against the defendant corporation on the other, are to enter into your deliberations. There is nothing in the testimony to show, or to warrant you in concluding, that this defendant employed this boy for any censurable purpose. It is not here arraigned as a criminal under this statute for the employment of this boy; but, so fa1l' as there is affitmative evidence before you, it appears that the ulill boss employed the boy out of sympathy for him and his mother, and that it therefore stands here entitled to the presumption ofhavirig employed him without· any: unworthy or criminal intent. Now, imbued with tliis spirit of perfect fair dealing between these parties, let us proceed to consider this testimony as to the legal principles that are to control you in finding your verdict. The statute of Ohio prohibits all persons from employing pays under 12 years of age in such establishments as the defendant operates. How does this statute affect tQfS case? If, defepdant was. being prosecuted under Ohio laws for violation of this statute, the fact of employment by defelidant, and the fact that it knew him to be under 12 years of age at .the fimebf such employment. would be all that would be needed to secure conviction. But,in a civil action for an injury to such minor on account of such employment, other considerations may enter into the case before the defendant would be liable for such illegal employment. In 8.clvil 'cuse, where the illegal employment was the direct and proximate cause of the the defendant would be liable. But where, in such an action, injuries are complained of which go beyond the employment, and involve questions of negligence on the part of the defendant, or contributory negligence on the part of the plaintiff, then the mere employment or violation of this statute iSllot, in and of itself, enough to entitle plaintiff to recover. With this instruction as to the effect of this statute, you may then proceed to inquire as to the next question: Has the deferidantbeen guilty of negligence other than the mere employment, which resulted in this accident? If you find that the defendant gave this boy employment, and fur-
EVAKS V. AMERICAN IROX & TUBE CO.
nished him a safe and easy task, in an unexposed position, and that if he had attended· to his duties and labor and remained at his post he would have escaped this injury, such employment cannot be claimed to be negligence, or the proximate cause of this injury. If you find from the evidence that the defendant furnished this boy with a safe employment suitable to his condition at a safe position, but that of his own choice he undertook to go about the mill and its machinery, and so, voluntarily or without direction, exposed himself to dangerous machinery, or undertook, of his own will, to do dangerous work, and that he was of such age and experience, and had such knowledge of the machinery, as to enable him to know of such dangers, and that in so doing he exposed himself to risks that a prudent, bright, and careful boy, of his age, exercising ordinary and reasonable care, ought not to have done, and was therebyinjllred, then I say'to you, as a matter of law, that he contributed to that injury, and cannot recover.. A boy of his age and experi, ence cannot be, and ought not to be, held to the same degree of care that ought to be expected of a man of years and knowledge. But you have seen the boy, and have heard hitn 'testify. You have heard evidence as to his bright andpoplllar ways,and his habits, and from these observations and evidence you: can safely judge as to his intelligenceand knowledge of this mill and its machinety' in November, 1887, and as to his information pS to the process of making tubes; and -you must therefrom as to what would have been ordinary care and prudence,' or what would have been negligence, on his part, at that time in his life. He had been in the service of the defendant some months. He knew the employes, and the general nature of their respective employments. He had seen the machinery operate" and knew, or had opportunities to see, its dangerous and its hazardous points. You will consider all these tacts when you come to apply the proper standard of care and prudence for such a boy, under the circumstances of this case. If in applyitlg this standard you find that he acted without proper care and caution in voluntarily undertaking any pallt of the work about the mill, and through this want of care he voluntarily exposed himself to dangers about which he ought to have known. then he cannot recover in this case. If you find that William Lewis was under 12 years of age at the time he received the injuries complained of, and that he was at that time incapable, by reason of his youth, inexperience, and want of knowledge, of apprehending and appreciating the dangers and hazards of dangerous machinery, then I say to you that he would not be in law a co-laborer or fellow"servant of the aduH servants of defendant there employed. If William Lewis, being there under such employment, as described, was ordered, or knowingly permitted by one of the defendant's adult servants then and there engaged in dangerous and hazardous work, to assume such dangerous work at or near dangerous machinery, and' in a dangerous and hazardous place, the dangers and hazards of which Lewis was incapable of appreciating, and that, while so employed in ing the work of such aduIt servant, he received the injuries'complainedof; iti.e.B question for you to determine whether 01 not, under all the cir-
522
,FEDERAL REPORTER,
cum!,\tances, such copduct of such ad,wt male sen'ant of defendant was qegligent; and if youifind that such,adult servant was negligent, and the injuries tQthis boy were theqirect and proximate result of .such ,negligence, then I to you, as oflaw, that the negligence of servant,W:Quld ofdefenda?t,for which it ,w-o,uld be hable, and f()r WhICh thepl!nntIff wou.ld be. entItled to recover; unl $SYOu find that said Lewis, did: p,?t, in and about the performance of Il!whservice, exeJ9ise such care s,lld prqdence as boys of his age, experience, and intelligence are accqstomed to exercise under the same or circumstances, and that his failure to exercise s.uch care and prude#eecontributed tQ, hisinjuries. " Tbe plaintiff's ward was not lJ,. COo-laborer to the other employes, in the legal s,epse thatp6.!ltoodon footing of owing the same duties, t,Q the other. He did not occupy,' as to them, the same relation .as thqugh he had a man, or a DjlhlOr of more mature years. But ,h,e,w{l.S ,not there as I:!-pmfant and a warp, to be looked after by such emi ploYeswhenever he, leave bis"pO!:ltof duty to which he had been If he left tll,at place of ,QJ,lty, and took .other risks, he took carried with he Voluntarily went about that mill, a duty; look after himself, 'and protect himself from dangers, to the expfthat care aAd prudence,whioh.y.Qu might. reasonably expect ola bpy, ofthat age,as.I pave beforeexpJained, and the other employes.in hiPll)o:other or gt;eatercare and ov,ersight than they wquld be expected to ex,tend to. a ,prudent and careful boy of that age !lQd, '.. , . ; t/l.kes, us to tqe ,next, pointin :tbe .<:ase. . If you, find, gentlemen, that, 18lthpugh the employed this boy: .to perform labor not dangerous to be at unexposed ,place,..but during such emploY;r,Jil13nt by iUHI:lill boss, or officer, Qirected the boy to go to a ,place:,where he wall·,nQii accustomed to be, and to do labor he had not l>een.'aecustomed to do,. and at a dangerous point, against which he had not been properly warned. and cautioned; and you further find that the . boy, under such orders, ,did go and undertake to perform that labor, with as much care and prudence as.wo\\ldbe expected of a prudent and boy of that ;age and experience, under similar circumstances; and while in that place, and while undertaking to do that work; he was injured,.,......then the defendant would be. liable for such injury, and your verdiqt.i:lhould be for t!].e:plaintiff. It was the duty of the defendant to anticipate that minorE! would .not. exercise the same care and, foresight f\ffiid:dangers that aduJ.ts would, alld it was the duty of the defendant, thl'O\1gp its proper spbli)l'dhlates, to. give to snchminors, when taken in its errm19yment,properinstructionsas to their duties, and proper caution as, employment, and of the· machinery surrounding thElDl!." if yop. and. frQm the ,evidence that plaintiff's ward had been il\ltAe for a Buffieient length of time to make him fW:l1:l"war.e of the dangers of his work, and ofthe place; or to have enlll:lle<l .of,his llge' and experience, by reasonable care and diligl;ll;\Cf3,., to have madehimself aware of su@. dangers; and that he had such
EVANS ". AMERICAN IRON &: TUBE CO.
523
knowledge, or should have had it, then the failure of the defendant to have originally cautioned and warned him, if you find that it did not do so, is not negligence that approximately or directly caused this injury. These are the principles of law, gentlemen, that areto guide you in your deliberations in this case. The duty of defining the law is with the court, and you are bound by such definition and instruction, and you will accept them without any discussion or consideration, whether they are right or wrong in your judgment. The duty of deciding the facts is with you. But there are some well-settled general principles of law that govern you in passing upon these facts, and it is proper in this case that I should direct your attention to them. There is a marked conflict of testimony as to the facts upon which you are to pass. Your own experience has doubtless already made it plain that good and honest men will often differ as to the details of accidents about which they teatify. This is especially true when an injury occurs in a noisy mill, and under the circumstances of this case, after over two years of time. This injury· occurred in a mill where none but the employes of the defendant saw how it happened. The men to whom we must therefore look for the facts were employes. Some of them are still in the employ of the defendant, and some are not. You are to presume that all these men are honest and truthful, and have told the truth as they believe it, unless the contrary appears. It will not do to assume, as counsel have urged, that all these men have disregarded their oaths, and are unworthy of belief, simply because they are in the employment of defendant. It would· be a mostlllarming and dangerous situation if the relation of employe to employer in this enlightened and free country should put such men Un· der suspicion and disability. But you will fairly ana properly consider whether, as to any of these witnesses, this relation hus in any way embarrased them, or restrained them from telling freely all the facts within their .knowledge as to this accident. This you can properly judge from their conduct on the stand, for there has been nothing in the way of im:' peachment by direct attack upon their character. Did they manifest. any disposition to suppress· any of the facts, or were they reluctant to tell' the whole truth as they knew it? Did they show feeling, antipathy wards the plaintiff, or any conduct that impressed you as throwing suspicion upon their truthfulness? If so, you will properly weigh theirevi-' dence as being impaired to that extent. But the mere fact that they disagree as to details, and as to which way or route of travel through this large mill the boy got to this place of accident, or in just what way he got caught in this gearing, should not, of itself, lead you to set aside their testimony,and disbelieve them in toto. It is, on the contrary, your auty to assume that they want to tell the truth, (if nothing in their conduct' leads you to think otherwise,) and to reconcile their statements if possible. Look to see if theyhave ltny interestin this case which is likely' to swerve their testimony. And this is true of the plaintiff's as well as' ofthe defendant's witnesses; and, if yoU find such interest exists, it is Ii circumstance to which you can 10()k in weighing their testimony. Witnesses may differ in details) and' yet their testimony as to the important
FEDERAL REPORTER,
agree. Thus several witnesses agree that this hoy at the time oftheinjqry was at a certain pla.ce at a certain time, and yet disagree as to the rO\lte he traveled to get there, ,or why he went there, or what he did while he was on his way there. The diflerencesas to the unimportant details you may pass over as matters about which witnesses may be honestly mistaken, but that would not- warrant you in disregarding their evidence as to the essential and main fact as to which they agree and are corroborated. So you will treat the discrepancies between the witnesses as to where Smeltz, the mill boss, stood when it is claimed he ordered this boy to the place where . t he accident happened. The impprtant fact in this connection is, was such order or direction given, and it is not important in settling that fact where he stood when he gave it. The exact position he occupied at this time may be important as relating to other disputed facts, and, if so,you may consider it in that relation aSlY,laterial. I refer to these general principles as indicating how you ml1oM"}ntelligently consider all this testimony, reconcile so much of it as gather from all of it the important facts that must guide yoq in reaching a verdict. . The plaintiff must satisfy you by a fair preponderance of the evidence that the acts of negligence relied upon were committed by the defetldant. There must be a fair preponderance of such evidence; not such as to remove all reasonable doubt. but such as to satisfy you that the fair weight of it is with the plaintiff; and, unless the lact of contributory' negligence appears from plaintiff's testimony, the defendant must satisfy you ot.that by the same preponderance. But in this connection you should assume that William Lewis, at the time he was injured, possessed theordil'lary intelligence and discretion possessed by others of the same . age, uoless the contrary appears. If, under these instructions, you find that the plaintiff is .entitled to recover, it will be your next duty to award him damages. The court can give you no exact rule by which you ca,n measure these damages. All it call! po in that particular is to give you such elements as you may take into consideration in making up your verdict. The compensation to whicb.plaintiff is entitled, if entitled to recover at all. is measured by the nature of the injury. In estimating the compensation due the plaintiff, you should take into consideration his bodily suffering and pain, including the pain and sufiering at the lime of the accident; while recoveringor partially recovering from his injuries; what he has suffered since; what he will suffer, if any, by reason of the accident in the future. You may also take into consideration the disfigurement of his face, and the loss of,hisarm. You should also consider whether or not the injuries to his body are permanent, and whether or not they are of such a character as torleerease his earning capacity in such work or vocation as he would probably be fitted to pursue. lfyou find that the injuries and mutilations of his chest are of such a nature as to interfere with and decrease hisearning capacity, then youshQ\lld estimate for those injuries. You should also consider the loss of plaintiff's arm; and, if you find that such loss will interfere with and decrease lplaintiff's ,earning capacity in
ZEH t'. CADWALADER.
such pursuit or vocation as he will probably be able to fill, then you should allow for such loss of earning capacity a sum sufficient to compensate bini for such loss.· You may also, in estiniating the amount of compensation due plaintiff, take into consideration the mental suffering, if any, naturally resulting from the injuries received. This is a case, gentlemen, naturally appealing to our sympathies; and I therefore feel it proper and prudent to remind you that the rights of parties in courts of justice are to be determined upon well-defined pririciples of law, and not upon the impulses of generous hearts, however well prompted. I need not, T am sure, say more to insure to both these parties a full, fair consideration of their rights, and to receive from you. a just verdict according to the law and the evidence. Take the caSe,· gentlemen, and make such a finding as your conscience will approve. Verdictfor plaintiff for $6,000,
J Circuit JUdge, by in vitation of District Judge. sat with the latter tq bear motion for new trial, which, after full argument, was denied. Judgment rendered on verdict for $6,000 and costs.
ZEH et al.
t1.
CADWALADER, Collector.
(Circuit Court, E, D. Pennsyh,ania. October 10, 18ll9.) 1. CUSTOMS DUTIES-CLA.SSIFICATION-DECORATED EARTHENWA.RE.
If decorated china earthenware is bought, sold, and used under the name of "toys," it ls to be classified for duty, under paragraph 4-25, at 35 per cent" and it is unimportant whether the articles are used for playthings for children or for household p u r p o s e s . · . SAME-Toys. The term" toys" used in the tariff 001 is to receive the signification ordinarily attributed to it in common speech, unless evidence shows that it has a different trade signification,-that is, that it .is diffeJ'ently used and understood when applied to such merchandise by those engaged in commerce respecting it, and had such dif· ferent signification at the date oUhe statute in 1883.
At Law. This was a suit brought for the recovery of certain cllstoms duties alleged to have been unlawfully exacted upon certain earthenware, mugs, cups, saucers and plates claimed by the plaintiffs to be dutiable at the rate of 35 per cent. as toys, under paragraph 425, Tariff Index, (New,) the appraiser having returned them as decorated earthenware at 69 per cent. under paragraph 125, Tariff Index, (New.) The samples produced upon the trial of the importation consisted of ABC cups and plates, sa.-called tea muffins, decorated and fancy mugs, and plates, Opon the trial, the testimony of the plaintiffs tended to show that ticles in question were bought, sold, and used in the trade as toys, a.nd were known by that name, while the testimony of the defendant tended to prove that the chief use to which they were put was not as playthings