
    CHARGE TO JURY — INFANTS—MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    February 23, 1907.]
    Taggart, Marvin and Donahue, JJ.
    (Judges Taggart and Donahue of the fifth circuit, sitting in places of Judges' Winch and Henry.)
    
      K. D. Box & Label Co. v. Tommie Caine et al.
    Omissiox in Charge Defining Ordinary Cake to Refee to Age of Minor Plaintiff not Erroneous.
    Where an action on behalf of a minor, brought on account of injuries received in a machine which was feeding, is tried on the theory that the-defendant failed to instruct the plaintiff as to the extra hazard arising from a change in the material which he was feeding into the machine, an instruction is not erroneous because of the omission in his statement defining ordinary care to refer to the age of the plaintiff, if it appear from the charge taken as a whole that the jury were not mislead thereby..
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Ford, Snyder & Tilden, for plaintiff in error.
    Cited and commented upon the following authorities: Bailey, Personal Injuries See. 2849; Thompson, Negligence See. 4095; Hettchew v. Chipman, 87 Md. 729 [41 Atl. Rep. 65]; White v. Lithograph Co-131 N. Y. 631 [30 N. E. Rep. 236]; Hickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Stuart v. Railway, 163 Mass. 391 [40 N. E. Rep-180] ; Lowcock v. Paper Co. 169 Mass. 313 [47 N. E. Rep. 1000]; Sullivan v. Electrical Co. 178 Mass. 35 [59 N. E. Rep. 645]; Park v. Whitney, 148 Mass. 278 [19 N. E. Rep. 161]; Mackin v. Refrigerator Co. 100 Mich. 276 [58 N. W. Rep. 999]; Ogley v. Miles, 139 N. Y. 458 [34' N. E. Rep. 1059]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260]; Ball. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Wabash Ry. v. Sidles, 64 Ohio'St. 458 [60 N. E. Rep. 576] ; Clev. C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66.
    W. C. Ong, for defendants in error.,
    Cited and commented upon the following authorities: Shamokin Bank v. Street, 16 Ohio St. 1; Burton v. Insurance Co. 26 Ohio St. 467; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738]; Gin. H. & T>. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900]; Snider v. Young, 72 Ohio St. 494 [74 N. E. Rep. 822] ; Cleveland 
      
      Bolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466;,3 L. R. A. 385; Í5 Am. St. Rep. 596] ; Lake Erie & W. By. v. Mackey, 53 •Ohio St. 370- [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. ■640] Citizens Elec. By. ,v. Bell, 26 O. C. C. 691, affirmed, no report, Citizens Elec. By. v. Bell, 70 Ohio St. 482; Breckenridge Co. v. Beagan 12 Ciro. Dee. 50 (22 R. 71); Noden v. Verlenden Bros. 211 Pa. St. 135 [60 Atl. Rep. 505]; Wallace v. Oil Co. 66 Fed. Rep. 260; Williams v. Bailway, 91 Ala. 635 [9 So. Rep. 77]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260] ; Evans Laundry Co. v. Crawford, 67 Neb. 153 [93 N. W. Rep. 177] ; Mickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286] ; Small v. Lumber Co. 95 Minn. 95 [103 N. W. Rep. 726] ; Bibb Mfg. Co. v. Taylor, 95 Ga. 615 [23 S. E. Rep. 188]; Steiler v. Hart, 65 Mich. 644 [32 N. W. Rep. 875]; Addicks v. >■Christoph, 62 N. J. Law 786 [43 Atl. Rep. 196; 72 Am. St. Rep. 685]; Evansich v. Bailway, 57 Tex. 126 [44 Am. Rep. 586]; Doioling v. Allen, 74 Mo. 13 [41 Am. Rep. 298] ; Clark v. Homes, 7 Hurl. & Nor. :937; Louisville, N. A. <& C. By. v. Frawley, 110 Ind. 18 [9 N. E. Rep. ■594]; Clev., C. & C. By. v. Crawford, 24 Ohio St. 63Í [15 Am. Rep. ■633] ; Pitts. C. & St. L. By. v. Fleming, 30 Ohio St. 480; Lake Shore ■<& M. S. By. v. Fitzpatrick, 31 Ohio St. 479; Balt. & O. By. v. Whitacre, ■35 Ohio St. 627; Cleveland & E. Elec. By. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; Ohio é Ind. Torpedo. Co. v. Fishburn, 61 Ohio •St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 446],
    
      
      Affirmed by the Supreme Court, without report, K. D. Box & Label Co. v. Caine, 53 Bull. 108.
    
   'TAGGART, J.

This ease had its origin in the court of common pleas, by the defendant in error, through one Delbert M. Bader, his guardian, filing .a petition in said court, in substance alleging that he was a minor, inexperienced in the conduct and control of dangerous machines, and that he entered about May ll, 1904, into the employment of the defendant to feed a machine which was being operated by said defendant; that the operation of said machine was dangerous and hazardous; that the defendant failed to instruct him as to the dangerous character* of said employment and the use of said machine. •

The answer of the defendant was a general denial and alleged contributory negligence.

The case was tried purely upon the theory that the defendant had failed to instruct the plaintiff upon the extra hazardous situation that came about by reason of the change of the material.

The case was heard only on the testimony in behalf of the plaintiff below.

It appears from tbis record that there was an exhibition of some appliances used in the court room on the trial, by which the manner of placing slips or pieces of paper board was being demonstrated before the jury, and much of this record is taken up by the testimony of witnesses .apparently demonstrating to the jury the manner in which pieces of the paper board was placed in, and taken out.

On the day this boy was injured he completed the work that he had left over from the day before with the material that was flat; that in feeding this material, the placing of a piece of paper board within the blocks or guides would be indicated to him, not merely by his sense of sight but by his sense of touch, that it had dropped in its place so that it would pass up and be forced upon the knives; that about 7:30 or 8 ■o’clock he finished the work with the flat material; that thereupon he was furnished with other material that was oval; that he thereafter attempted to operate his machine with the new material. In attempting to do this he did not succeed, and a fellow-servant noticing his difficulty, ■came and told him how he should roll it the other way, which would have a tendency to flatten it out. He then proceeded to roll or flatten the oval paper board, and did flatten all that he had upon the table for his use. He had difficulty in dropping this material so that it would fall within the guides and be forced up upon the knives, and as he was putting this oval material in, it would sometimes require him to place his hand down and force the piece of paper board under the guides in ■order to get it into position. This he says was much more dangerous than when he used the flat paper, as he was not required to use his hands but little in forcing the flat paper or cardboard in position. No instructions were given him in regard to the handling of this oval paper board. The testimony seems to indicate that in feeding, especially the flat pieces of paper board, it could be done much more easily, and it •only required to be simply dropped within the' guides and he would, ■therefore, have more time to remove his hand; that the oval material required him to reach further down and also to force the pieces of paper board under the guides in order that it might be properly cut by the knives, and that in so doing his hand was cut.

All of these facts were before the jury, together with the demonstrations upon the apparatus used in the common pleas court illustrating the machine that was used for cutting this paper board, and showing the character of the machine and the operation of the same. From an examination of the whole case, it appears that it is a case as to which .different minds might arrive at a different conclusion.

The jury passed upon the testimony, and found, taking all the circumstances of the case, that the defendants were negligent in not giving proper instructions to the plaintiff as to the manner of using the oval paper, and the operation of the machine with such paper board, and with respect to the verdict it is not manifestly against the weight of the evidence. 1

The court in its instructions to the jury was very favorable to the defendants, instructing them very carefully that if the plaintiff understood the character of the dangers incident to the operation of this machine, and appreciated the dangers or should have appreciated them, that then the plaintiff could not recover. It also instructed the jury fully in respect to the fact that if he was informed as to the dangerous character of this maqhine, he assumed the risk, and that there could be no recovery.

The only objection that is made to the instructions given to the jury are the instructions found on page 126 of the record, as follows:

‘ ‘ I think I have failed to give you a full definition of ordinary care. Ordinary care is just such care as men of ordinary care and prudence are accustomed to exercise under the particular circumstances of the case. Ordinary care, as applied to the plaintiff in this ease, would be just such care as persons of his intelligence, comprehension and ability to know, exercise or ought to exercise under the particular circumstances of the ease.”

Now it is said that the principle, as found in Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596], of contributory negligence, as applied to children, is not applied in this case, because the court below omitted to state anything, or instruct the jury in respect to^ anything concerning the age of the plaintiff, and therefore the charge was misleading and erroneous. Taking this whole charge together, we do not believe that this was so misleading that the jury were drawn away from the main questions in this case; we think that it follows that the rule as laid down in Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 446], should be applied in this ease, which is as follows

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held to be erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead. ”

We do not'believe that after the court had fully instructed the jury, and with great carefulness, and then had given this definition of ordinary care, that this instruction was misleading, and that the verdict ought to be set aside for this reason.

Therefore finding no error in this record to the prejudice of the plaintiff in error, the judgment will be affirmed.

Marvin and Donahue, JJ., concur.  