The exceptional force and cogency of the argument on rehearing has compelled our most careful consideration of this record. This examination has involved a study of the evidence in the case, and this study convinces us that, under and considering only the evidence of defendant, liability is shown, and that on the question of liability the jury should have been instructed to find for the plaintiff. And that the only question to present to the jury was the amount of the damages to which the plaintiff was entitled.
On the question of liability, in addition to what is said in the original opinion, we call attention to the fact that the statute (Comp. Laws 1909, sec. 630, Rev. Laws 1910, sec. 3729) regulating the employment of children provides: *Page 45
"Section 630. No child under the age of sixteen years shall be employed, permitted or suffered to work at any of the following occupations: Oiling or assisting in oiling, operating, wiping or cleaning any dangerous machinery, or adjusting any belt to any such machinery, while in motion; operating, or assisting in operating, circular or bandsaws," etc.
Mark the words of one paragraph of the prohibition, "No child* * * shall be employed, permitted, or suffered to work at * ** operating, or assisting in operating, circular or bandsaws." (Italics ours.) From the brief for rehearing we find from defendant's own evidence that Mattheison, the foreman, employed the boy under an arrangement with the father, and turned him over, without a word of instruction, caution, or warning of danger, to one Johnson, assistant foreman, in the sash and door department. Part of Johnson's duties as assistant foreman was to instruct the men where to work and direct their work. Mr. Mattheison, being asked what work he intended the boy should do, answered, "taking the material away from the machines." The machine was one used for manufacturing window and door sash; it was about 42 inches high and four and one-half or five feet long. It was equipped with a number of circular saws. The light timbers were fed to the machine at one end, and came from the saws onto a revolving or endless chain, which carried the timbers to the other end of the machine, where, if not caught, they would fall to the floor. The work the boy was put to doing, and was doing immediately preceding the injury, was to catch these timbers after they left the saws, as they traveled on the revolving chain, and pile them on trucks.
The evidence contains the following:
"Q. It was the boy's duty to stand right behind that thing, and while they were cutting there the boy takes that stuff off of the machine? A. Yes, sir. Q. How close would he stand to that saw? A. He would stand about two feet. Q. This boy, then, had to stand about two feet from that saw? A. Yes, sir. Q. Did you have any guard around that? A. No, sir. Q. Who run this machine? A. A man by the name of Brooks. Q. Is this what they call an endless chain? A. A double intending machine. Q. Who was the other man that it took to run it, besides Brooks? A. There was only one operator to the machine and one boy. *Page 46 Of course, there were other men around the mill that operated other machines. Q. Now you understand my question, Mr. Mattheison, answer my question. Who, at the time this boy was hurt, was the other man at the machine? A. Walter Pigg."
And further:
"Q. Now, when the boy took the stuff, as you call it 'taking from the machine,' he had to take it with his hands and put it on the truck? A. Yes, sir. Q. It isn't a fact, then, that it was supposed to fall on the floor? A. No, sir. He has plenty of time to take it right off of the machine without letting it fall on the floor. He has plenty of time to take that stuff from the machine without letting it drop. Q. In taking off from the machine, it is customary to take the pieces before they drop on the floor? A. Yes, sir. Q. But if not taken, they will drop on the floor? A. Yes, sir. Q. That is, the endless chain takes the pieces out and drops them on the floor unless somebody takes them before they drop? A. Yes, sir. Q. That is why you have to have an assistant, to keep it from falling on the floor? A. We would have to have somebody."
Relative to who assigned the boy to work at the machine, the assistant foreman, Johnson, says:
"Yes, sir; I put him there myself, took him over there and showed him how to do it."
Johnson was asked the following question:
"Q. Then you took him to help Brooks in operating that machine and taking the lumber or sash from it? A. Yes, sir; I did."
What does this testimony disclose? Simply this: That this boy was hired and assigned to assist in the operation of a machine, the principal factors of which were circular saws, in clear violation of the spirit, and we believe the letter, of the prohibition of the statutes relating to child labor. It is no answer to say that his injury was not caused by handling the timbers in front of the saws, but by reaching over and attempting to oil the saws. If he had not been there working at this machine, it certainly is not probable that he would have tried to oil the saws. The law tries to guard the child from the dangers arising out of the inexperience and the immaturity of the child mind. This law is based on the knowledge of men that children of fourteen are immature in judgment, incautious, curious, and inquisitive *Page 47 as to the mechanism and operation of things, and that if placed to work with or at dangerous and complicated machinery, out of these very traits of childhood, they are likely to do just what this boy did, undertake to do something he thought to be in the line of his duty, and get hurt. The wisdom of this law must be clear to all men who have, or are interested in, children. It needs no defense by us. The court has no duty in regard to it, except to insist and, where need be, to decide that it must be observed by all who employ labor, both in its letter and spirit.
When defendant made this proof, it stood before the court condemned out of the mouths of its own witnesses; its position was one of admitted default in regard to its duty to this child. Had it not violated its duty in putting him to work at, around, and over — assisting in the operation of this dangerous piece of machinery — within the realm of all reasonable probability, he would not have been hurt and bodily maimed. We are not inclined to indulge in any nice refinements as to proximate cause, and do not need to rest this decision on whether or not the plaintiff was told to oil the saws, a point upon which it is claimed the conflict in the evidence took the question of liability to the jury.
It is believed and, therefore, held that, under the evidence most favorable to the defendant, it was not only permitting and suffering the plaintiff to do work contrary to the prohibition of the statute, but that it was actively requiring him to so work, and that its failure of duty in this regard is responsible for the injury. We may add that we think this point is sufficiently in issue in the pleadings.
The question, then, of the amount of damages being the only question that should have been submitted to the jury, none of the instructions of the court on the point of liability come under review here; but the instruction on the measure of damages and the method to be pursued by the jury in returning a three-fourths verdict necessarily in this situation assume a peculiar importance. In the original opinion it is said that the instruction on the measure of damages is to some extent objectionable because not clear as to the measure to be applied. The instruction not "to consume *Page 48 any time in trying to secure a unanimous verdict, but it will be your duty to sign that verdict just as soon as nine of your number, or more, less than the whole, agree," etc., was held to be clearly erroneous. The vice of this instruction is so clear to all men, though they be but slightly acquainted with the practical working of the jury system, that it needs nothing added to what is said in the original opinion.
The view formerly taken in this case was that although one of these instructions was open to criticism and the other wholly bad, yet, that inasmuch as it was not urged that the damages were excessive as a ground for reversal, that the errors were harmless. Ought this view to be retained? This is the only question that has given us much trouble. The injury in this case was grievous and resulted in the loss of the right hand. The damages awarded were $10,000. The boy was entitled to recover such an amount of damages as would fairly compensate him for the injury sustained, as shown by the evidence in the case. And in arriving at this amount the jury should have taken into consideration all the proper elements of the damage. InMuskogee Electric Traction Co. v. Reed, 35 Okla. 334,130 P. 157, the rule is thus stated in syllabus:
"In an action to recover damages for the injury to the person, the plaintiff is entitled to recover the expenses of the cure, or reasonably attempted cure, the reasonably probable cost of the future treatment or nursing, when the injury is permanent or irremediable, and the loss of time up to the verdict, and reasonably probable future loss from incapacity to do as profitable labor as before, and pain and suffering proximately caused by the injury." (Choctaw, Okla. G. Ry. Co.v. Burgess, 21 Okla. 653, 97 P. 271.)
Also, see Chas. T. Derr Const. Co. v. Gelruth, 29 Okla. 538,120 P. 253.
The amount to be allowed must finally rest in the sound judgment of the jury, applied to the evidence before it on the question measured by the law as given by the court. The jury is an important branch of the court. It is an integral and necessary part of our system. On questions of fact cognizable by it, its judgment, expressed in a verdict, will not be disturbed, *Page 49 when there is evidence reasonably tending to support it, even though the court, upon the same evidence would have, had it been left to it, arrived at a different result. Hence the importance to — nay, the fundamental right of — every suitor in a jury case to have the mature, unprejudiced, unbiased, and deliberate judgment of the jury on the facts of his case. Each juror brings into the box his peculiar experience, observation, and intelligence. He has a right to present to the other members, courteously but courageously, the views he entertains of the evidence; what it proves to his mind, and from it all wherein justice and right lies. Has not every lawyer of experience had cases where the unanswerable logic and analysis of some broad-visioned man, ripe in experience and observation, has stood alone at the beginning of the deliberation, and later, and quickly, changed the views of the majority into a concurrence with his own. The prime function of the jury — to deliberate — is destroyed before they retire, when instructed to hasten along, to waste no time in trying to arrive at a unanimous verdict, but that as soon as nine can agree on something to bring it in. The Constitution has not reduced the jury to nine men. Twelve men are still to deliberate. If after reasonable deliberation and consideration a unanimous verdict cannot be arrived at, nine of the jurors have the power, if they desire to use it, to return a three-fourths verdict into court. This course is only to be pursued after the case has had reasonable consideration with a reasonable opportunity for discussion and reasoning upon the part of jurors. The errors herein discussed were fully appreciated by us in the original opinion; but it was thought that, as it was not alleged as a ground of reversal that the damages were excessive, we were justified in holding the errors harmless. But it has been called to our attention that, while this is true, yet that complaint has been made all through the case as to the damages. Not that the amount would be held so excessive of itself as to afford ground for reversal, but that the amount should not stand, because not based on the proper measure, and not arrived at in a proper way. We have come to the conclusion that the errors cannot and ought not to be held harmless. *Page 50
In this situation where, after a lengthy and manifestly expensive trial, a jury has found defendant liable, and this court has concluded that, applying the law to defendant's own evidence taken in its most favorable light, after a full and complete development of the facts of the injury sued for and the situation of the parties, the defendant is liable, as a matter of law, and that the only error goes to the amount of the damages — in such situation the judgment of the trial court holding the defendant liable should be affirmed, and the plaintiff's right to recover stand and remain established; and that the amount of judgment be set aside, and the cause remanded, and a new trial be had upon the question of the amount of the damages recoverable, and that only. This court has the power to so direct, in the interest of the speedy and economical administration of justice, under the peculiar situation presented here, and the holding to that effect is confined to the facts of this case. There is ample authority to support this holding. Powell v. Augusta Summerville R. Co.,77 Ga. 192, 3 S.E. 757, a case closely in point. In Davenportv. Bradley, 4 Conn. 309, it is said:
"When there exists an error in the assessment of damages only, it is entirely incompatible with justice, that the previous proceedings in the cause should be set aside. So far as they are legal, they must be permitted to remain. It follows, that the effect of the reversal must be limited to the assessment of damages, and not be suffered by retrospection to vacate any part of the anterior proceedings, in respect of which there has been, and can be, no complaint."
Patterson v. Blakeney, 33 Ala. 338; Boyd v. Gilchrist,15 Ala. 849; McConnell v. Wall, 67 Tex. 352, 5 S.W. 681; McKinneyet al. v. State ex rel. Nixon, 117 Ind. 26, 19 N.E. 613; 3 Cyc. 457.
The cause should, therefore, be remanded, and a jury impaneled to determine and reassess the amount of the damages due plaintiff, as shown by the evidence, and judgment shall be rendered for the amount so found, in accordance with this opinion. Under the circumstances, we will not award costs, on account of the remand.
By the Court: It is so ordered. *Page 51