HARRIS v. OGDEN STEAM LAUNDRY COMPANY.

No. 2229. Decided September 15, 1911 (117 Pac. 700).

1. APPEAL AND ERROR-PRESUMPTIONS.

The Supreme Court must

assume that the jury followed the instructions, unless the ver dict and record show the contrary.

(Page 442.)

2. MASTER AND SERVANT-INJURIES-ACTIONS-SUFFICIENCY OF EVIDENCE. In an employee's action for personal injuries by having his arm caught in a wheel after he had become dizzy from the fumes of gasoline used in dry cleaning, evidence held to sustain a finding that the foreman knew of the dangers incident to gasoline fumes as used by defendant. (Page 442.)

3. MASTER AND SERVANT-SIMILAR FACTS. In an employee's action for personal injuries by having his arm caught in a revolving wheel, after he had become dizzy from gasoline fumes, and had fallen against it, in which the answer denied knowledge of the effect of gasoline fumes, and that it had the effect claimed by plaintiff, evidence was admissible as to the effect of gasoline fumes upon witnesses. (Page 442.)

4. EVIDENCE-OPINION EVIDENCE-NONEXPERT TESTIMONY. Nonexperts who had witnessed the effect of gasoline fumes on persons working in a room could testify that its effect in the instances they had seen was to cause dizziness. (Page 443.)

5. EVIDENCE-PRESUMPTIONS-UNIFORMITY OF NATURAL PHENOMENA. It is presumed that individuals of both sexes are normal as to natural functions of the body or organs until the contrary appears; so that, if gasoline fumes are shown to cause dizziness to a number of persons coming in contact therewith under certain conditions, it may be presumed, in absence of contrary evidence, that all persons, irrespective of some difference in age, will be similarly affected under similar circumstances. (Page 444.)

6. APPEAL AND ERROR-VERDICT-CONCLUSIVENESS.

If there is any

substantial evidence to support every fact essential to a recovery, the Supreme Court cannot interfere with the verdict. (Page 446.)

7. APPEAL AND ERROR-FINDINGS-CONCLUSIVENESS-WEIGHT OF EVIDENCE. The Supreme Court cannot determine what, if any, weight should be given to the evidence of a particular witness. (Page 447.)

APPEAL from District Court, Second District; Hon. J. A. Howell, Judge.

Action by Frank B. Harris, an infant, by Telia D. Harris, his guardian, against the Ogden Steam Laundry Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

C. S. Varian for appellant.

H. II. Henderson and J. A. Davis for respondent.

FRICK, C. J.

Frank B. Harris, a minor, who will hereinafter be called respondent, commenced this action by his guardian ad litem to recover for personal injuries alleged to have been sustained by him through the negligence of appellant.

The complaint, after stating that the respondent is a minor of the age of seventeen years, that a guardian had been appointed for him, and after alleging the corporate capacity and business of appellant, proceeds as follows: "That on the 10th day of May, 1909, plaintiff was employed by the defendant to work in its laundry, in what is known as its 'dry cleaning department.' That said department consists of a room about ten feet square and seven and one-half feet high, and in said room there are two revolving washing machines and one revolving extractor. That clothes are cleaned by putting them in said washing machines, which contain about seventy (70) gallons of gasoline. Then, after the clothes are washed, they are taken from the washing machine and placed in the extractor for drying. That said extractor when in use makes about nine hundred (900) revolutions a minute. That when said washing machine and extractor are in use, gaseous fumes arise from the gasoline, then and there being used, in such quantities as to cause dizziness, sickness, and unconsciousness to a person working in said room. That on the afternoon of the 11th day of May, 1909, being the afternoon

of the second day of his employment, while he was in the performance of his duties and working in said room, and while said washing machines and extractor were then and there being used, he was made sick and dizzy and was overcome by the fumes of the gasoline then and there being used, so that he stumbled and fell and brought his right arm in contact with the clothes that were then and there being dried in said extractor, and without fault on his part his arm was twisted off at the elbow joint and left in said extractor. That by said twisting it has been necessary for plaintiff to have his right arm amputated about four inches above the elbow. Plaintiff further alleges that on said day he was inexperienced with the use of machinery, and with the effect of the gasoline fumes arising from the use of gasoline then and there being used. That the defendant did not give him any proper instructions concerning the effect of the gasoline fumes, all of which the defendant knew, or which by the exercise of ordinary care could have been known, and was unknown to the plaintiff. That the defendant did not warn him of the danger arising from said gaseous fumes, and the danger of operating said machinery, where said gaseous fumes were. Plaintiff further alleges that the defendant was guilty of carelessness and negligence, in this to-wit: That the defendant failed to give him any or proper instructions of the dangerous effects of the fumes arising from gasoline as it was then and there used, and in failing to use ordinary care in furnishing the plaintiff a safe place in which to work." It was further alleged that by reason of the carelessness and negligence of appellant aforesaid the respondent was permanently maimed and crippled, and that he sustained damages in the sum of $20,000, for which he prayed judgment.

Appellant in its answer admitted the allegations respecting the minority of respondent and its own corporate capacity, admitted that respondent was employed by it to work in its laundry in the dry cleaning department, admitted that respondent "was injured by permitting his right arm to be caught in the extractor, whereby it became necessary to amputate the same, admits that this defendant did

not give plaintiff any instructions in or concerning the effect of gasoline fumes, nor warn him of the danger arising from the same, and because there were no such fumes in quantity to be injurious, and because defendant did not know of and could not anticipate any danger from the fumes of gasoline, if any there were in sufficient quantities to be injurious, and defendant denies each and every allegation in the complaint." Appellant, in substance, further affirmatively alleged that for more than two years it had conducted a dry cleaning department in connection with its laundry business, and, as is the custom in carrying on such departments, appellant "made use of gasoline for the purpose of dry cleaning the clothes in the washing machines," and that the fumes or odors of the gasoline had never been offensive, and that the same "are not deleterious or dangerous in their effects upon people, and are not liable to and do not make them dizzy or sick." The appellant further averred that respondent was injured through his own negligence, and that "the injury suffered by the plaintiff was the result of an accident, and not otherwise, which was not and could not have been anticipated or guarded against by this defendant.'

Upon substantially the foregoing issues there was a trial to a jury, which resulted in a verdict in favor of respondJudgment was duly entered upon the verdict, and, after denial of a motion for a new trial, appellant presents the record on appeal:

ent.

The assignments of error are numerous, but counsel in his brief and argument has grouped them under four heads designated by the capital letters A. B. C. and D. We shall, as briefly as possible, examine the errors as grouped by counsel.

The errors embraced in group A are stated by counsel in his brief thus: "The court erred in permitting witnesses for the plaintiff to testify as to their knowledge of the effects of gasoline fumes acquired by personal experience and observation of others." Over appellant's objections, witnesses were permitted to testify substantially as follows: Mr. Sumner, a witness for respondent, in effect testified that he had been in the business of cleaning with gasoline for about

eighteen years; that he was employed by appellant in its cleaning department in April, 1909. He then described and gave the size of the rooms, which, he said, were small for the business in which appellant's cleaning department was located. He also stated the amount of gasoline that was used in the washers daily, and how they and the extractor which injured the respondent were operated. He then said that he and Mr. Hampton, the man in charge of appellant's business (quoting from appellant's abstract), "talked about the condition of the room (the cleaning room) two or three times. We talked it over about the place being too small, too dangerous to work in on account of fire, and then being overcome with gas, thought it was unsafe, and I told him so, and he said it was. He said the place was too small for the amount of gasoline consumed. Every day they lost ten or fifteen gallons by evaporation." The witness then stated that he knew the effect that gasoline fumes had upon a person, and that he himself, while working in appellant's cleaning rooms or department, had been affected by the fumes. He on both direct and cross-examination fully stated how the fumes affected him, and it is not deemed necessary to repeat his evidence here. Another witness named Wilson testified that he was a cleaner and dyer; that he had used gasoline in the business for about seven years, and knew the properties of gasoline; that during that time he had been overcome by gasoline fumes; that he noted the effects of gasoline fumes upon a girl who worked in his establishinent cleaning clothes with gasoline, and that she was overcome and fainted while working for the witness. Another witness, Mr. Gibbs, also testified that the gasoline fumes affected him when he worked with or over gasoline, that he became unconscious, and that the effect was like becoming intoxicated. Mr. Harms, state chemist, also testified what effect the fumes of gasoline had upon him, but that he did not know from personal experience whether such fumes had ever affected others as they had him. Appellant's foreman, who, at and prior to the time of the injury, was in charge of its business, also testified that "before May 11th I had