{
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  "name": "Oliver W. Norton and Edwin Norton v. John Volzke, an Infant, by August Volzke, His Next Friend",
  "name_abbreviation": "Norton v. Volzke",
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    "parties": [
      "Oliver W. Norton and Edwin Norton v. John Volzke, an Infant, by August Volzke, His Next Friend."
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        "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nThe appellee, a boy who had been at work for the appellants about six months, had a portion of the fingers of his right hand cut off in some cog wheels, while he yet lacked nearly five months of being eleven years old. There is testimony, contradicted, that when he applied for employment he said his age was thirteen years. In doing his work the evidence seems to be pretty clear that he sat on a box, with bis back toward, and about one foot from, the cog wheels; but whether he ought to have been in that position, or stood upon the other side of the machine, is the subject of conflicting testimony. In the position, he did occupy he worked with his left hand, reaching upward to some light cans being carried forward by the machine, his business being to keep the cans in order, and pick out defective ones.\nThere were two of these cog wheels, one over the other, about three inches in diameter, the cogs probably seven-eighths of an inch long, and the wheels turned in upon each other on the side toward the boy. The evidence states the distance that they projected from the side of the machine at from five to eight inches. On the same shaft with the lower one, was a sprocket wheel, somewhat larger than the cog wheel, and about two inches further out, on which a chain belt, extending upward and backward from the boy, ran. This sprocket wheel and chain were the only protection in the nature, or serving the purpose, of boxing, about the cog wheels.\nThe boy is the only witness as to the manner in which his fingers got between the cogs, and he says that reaching up with his left hand for a can, with his right hand on the box, lie' jerked the can out, the box slipped, and his right hand went back into the cogs.\n\u25a0 Testimony was put in, without objection, that after the accident, the cog wheels on that machine and on all machinery were boxed up. It is not improbable that a skilled and experienced mechanical engineerwould have seen that it was prudent to so box them before any accident.\nIn principle, the case is not distinguishable from Chicago Anderson Co. v. Reinneiger, 41 Ill. App. 324, S. C., 140 Ill. 334, and Ames & Frost v. Strachurski, 145 Ill. 192; and it is not difficult to account for verdicts in favor of the injured, in all that class of cases. Goss & Phillips v. Suelaw, 35 Ill. App. 103.\nThe instructions given for the appellee, to which appellants object, are as follows:\n\u201c Ho. 1. The jury are instructed that in determining the relative degrees of care, or want of care, manifested by the parties at the time of the injury, the age and discretion of the party injured are proper subjects of inquiry for the\" jury. The law does not require that a child shall exercise the same degree of care and caution as a person of mature years, but only such care and caution as a person of his age and discretion would naturally and ordinarily use.\nHo. 2. The jury are instructed that the rule as to contributive negligence of a child, is that it is required to exercise only that degree of care which a person of that age would naturally and ordinarily use, in the same situation and under the same circumstances.\nNo. 3. The court instructs the jury, as a matter of law, that if a person receives an injury as a combined result of an accident and of negligence on the part of another, and the accident would not have occurred but for such negligence, and the danger could not have been foreseen or avoided by the exercise of reasonable care and prudence, on the part of the person injured, taking into consideration all the facts and circumstances of the case, then the person guilty of the negligence will be liable for the injury received.\nNo. 4. If, from the evidence in the case, and under the instructions of the court, the jury shall find the issues for the plaintiff, and that the plaintiff has sustained damages, as charged in the declaration, then to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation and experience in the business affairs of life.\u201d\nIt is said that these instructions assume the facts, and if' we were to follow the words of the opinion in Chambers v. People, 105 Ill. 409, that \u201c the fact that the court assumes to state law applicable to particular states of case, is, of itself, an assumption that those states exist,\u201d Ave should be compelled to so hold. That such instructions do imply that evidence tending to prove the \u201c status of case \u201d is before the jury is doubtless true, but they imply no more. They are abstract\u2014assuming nothing.\nSuch a form of instructing is not approved by the decisions in this State, but those decisions held that it is not per se error. Little v. Munson, 54 Ill. App. 437.\nYet in Hill v. Ward, 2 Gilm. 285, it Avas held that the refusal of abstract instructions was erroneous.\nThe phase \u201c under the instructions of the court \u201d in the last is objected to on the authority of Kranz v. Thieben, 15 Ill. App. 482, Avhich is not quite in point. The Avords here mean that if from the evidence, and upon the law as given, the jury find, etc., which is exactly what the jury ought to do.\nThe appellants asked the court, and the court refused to submit questions for the jury to answer, as follows:\n\u201c Did the defendants omit to do anything that ordinarily prudent and careful persons would have done under the circumstances ?\nDid the defendants do anything that ordinarily prudent and careful persons would not have done under the circumstances ? \u201d\nAn answer \u201c no \u201d to the first question would have been decisive of the case, and the question should have been left to the jury.\nBut in answer to a question propounded by the court, they have said that the appellants should have placed a guard or cover about the cog wheels, which is equivalent to answering \u201c yes \u201d to the first question.\nThe error, therefore, in not submitting the question, is only theoretical. To the second question \u201c yes \u201d or \u201c no \u201d would not have been decisive of the case. C. & N. W. Ry. v. Dunleavy, 27 Ill. App. 438, S. C., 129 Ill. 132; C. & N. W. Ry. v. Bouck, 33 Ill. App. 123.\nThe refusal of that question \"was right. On the whole case there is no real error, and the judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      }
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    "attorneys": [
      "Appellants\u2019 Brief, R. S. Thompson, Attorney.",
      "Appellee\u2019s Brief, Pease & McEwen, Attorneys."
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    "head_matter": "Oliver W. Norton and Edwin Norton v. John Volzke, an Infant, by August Volzke, His Next Friend.\n1. Master and Servant\u2014Employment of Minors.\u2014 The law does not require that a child shall exercise the same degree of care and caution as a person of mature years, but only such care and caution as a person of such age and discretion would naturally and ordinarily use.\n2. Same\u2014Contributory Negligence of a Child.\u2014The rule as to contributory negligence of a child is, that it is required to exercise only that degree of care which a person of that age would naturally and ordinarily use in the same situation and under the same circumstances.\nS. Instructions\u2014May Imply Without Assuming Facts.\u2014The giving of an instruction which implies that evidence tending to prove the \u201c status of case\u201d is before the jury, is not reversible error.\n4. Special Interrogatories\u2014Theoretical Errors.\u2014It is not error to refuse to submit a special interrogatory when the answer to it would not be decisive of the case.\nMemorandum.\u2014Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.\nHeard in this court at the March term, 1894,\nand affirmed.\nOpinion filed April 19, 1894.\nThe opinion states the case.\nAppellants\u2019 Brief, R. S. Thompson, Attorney.\nThe employe assumes, as part of his contract of hiring, all the ordinary known dangers of his employment. Indianapolis, B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Illinois C. R. R. Co. v. Cox, 21 Ill. 20; Richardson v. Cooper, 88 Ill. 270; Pennsylvania Co. v. Lynch, 90 Ill. 333.\nThe fact that the employe is a child, does not free him from the operation of this rule. Gartland v. Toledo W. & W. R. R. Co., 67 Ill. 498; Glover v. Gray, 9 Brad. 329; Buckley v. Gutta Percha Mfg. Co., 113 N. Y. 540; DeGraff v. N. Y. C. & H. R. R. Co., 76 N. Y. 125; King v. B. & W. R. R. Co., 9 Cush. 112.\nIt is not the duty of an employer to instruct a servant as to an obvious danger, even though the servant be a minor. O\u2019Keefe v. Thom, 16 Atl. Rep. 737; Castello v. Judson, 21 Hun (N. Y.); Pittsburgh R. R. Co. v. Adams, 105 Ind. 151.\nIf the employe has gained a knowledge of the dangers of his employment from exjaerience - or other source, the failure of the employer to caution him as to such dangers will not make him liable for injuries received by the employe. Buckley v. Gutta Percha Mfg. Co., 113 N. Y. 540; Herman-Harrison Milling Co. v. Spehr, 145 Ill. 329; Palmer v. Harrison, 57 Mich. 182; Sullivan v. India Mfg. Co., 113 Mass. 399; Downey v. Sawyer, 32 N. E. 654.\nThe burden is on the plaintiff to prove that he was a person of inexperience and immature judgment, and incapable of appreciating the danger of his situation. Chicago Anderson Pressed Brick Co. v. Reinneigar, 140 Ill. 334; Sullivan v. India Mfg. Co., 113 Mass. 399.\nIf the employe continues in the employment after knowledge of its dangers, he can not, after injury, complain that the danger might have been lessened by the employer. Sullivan v. India Mfg. Co., 113 Mass. 399; Stephenson v. Duncan, 73 Wis. 404; Shaw v. Sheldon, 3 N. Y. St. Rep. 679.\nAn employer is not bound to provide absolutely safe machinery. Shroeder v. Mich. Car Co., 59 Mich. 132; Weber Wagon Co. v. Kehl, 139 Ill. 657; Camp Point Mfg. Co. v. Bellar, 71 Ill. 421; T. W. & W. Ry. Co. v. Asbury, 84 Ill. 429; Shearman & Redfield on Neg., Secs. 87-92; Moulton v. Gage, 138 Mass. 390.\nA servant who voluntarily exchanges his usual and proper place of work for one more dangerous, can not recover for injuries resulting from such change of position. Sinclair v. Bernt, 87 Ill. 174; Brown v. Byroads, 47 Ind. 435; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; St. Louis Bolt & Iron Co. v. Burke, 12 Ill. App. 369; Coal Run Coal Co. v. Jones, 127 Ill. 379.\nAn employer is not liable to his servant when the cause of the injury is purely accidental. Lewis v. Flint & Pere Marquette R. R. Co., 54 Mich. 55; Richards v. Rough, 53 Mich. 212; Hickey v. Taafe, 105 N. Y. 26; Gassaway v. Ga. So. R. R. Co., 69 Ga. 347; 14 Am. & Eng. Enc. Law, 890.\nAn employer is not negligent in pursuing a certain line of conduct where nothing has ever occurred to suggest it to be negligence in the master in so doing.\nAs no similar accident has ever before occurred, such want of previous experience was conclusive as to the absence of negligence in the defendant. Dougan v. Champ. Trans. Co., 56 N. Y. 1; Sutton v. N. Y. C. R. R. Co., 66 N. Y. 243; Kittermingham v. Sioux City R. R. Co., 62 Ia. 285.\nThe mere relation of master and servant can never imply an obligation on the part of the master to take more care of a servant than he may reasonably be expected to take of himself. Priestly v. Fowler, 3 M. & W. 1. Or more care of the servant than the servant may reasonably be expected to take of himself. Missouri Furnace Co. v. Abend, 107 Ill. 44.\nThe element of comparison is the essence of the rule of comparative negligence, and an instruction Avhich fails to institute a comparison of the negligence of the plaintiff with that of the defendant is erroneous. First Nat. Bank v. Eitemiller, 14 Ill. App. 22; Moody v. Peterson, 11 Ill. App. 180; Pittsburgh, Cinn. & St. Louis R. R. Co. v. Shannon, 11 Ill. App. 222; C. & E. I. R. R. Co. v. O\u2019Connor, 13 Ill. App. 68; E. St. L., P. & P. Co. v. Hightower, 92 Ill. 139.\nAppellee\u2019s Brief, Pease & McEwen, Attorneys.\nInfancy at any age is a fact tending to prove incapacity. Herdman v. Spehr, 46 Ill. App. 24.\nHo rule can be laid down as to the negligence of infancy; it is always a question of fact. C. C. Ry. Co. v. Wilcox, 138 Ill. 370.\nMaster can not direct servant to work in a dangerous place. Consolidated, Ice Machine Co. v. Kifer, 26 Ill. App. 466.\nAnd a willful neglect to provide proper protection to an employe in a dangerous occupation is gross negligence. C. & E. I. R. Co. v. Huirs, 33 Ill. App. 271.\nThe rule that the employe assumes the risk of his employment does not apply to young persons; the infant must be informed of his danger. Herdman v. Spehr, 145 Ill. 329."
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