Ingerman v. Moore

De Haven, J. — This is an action to recover damages for a personal injury sustained by the plaintiff, and alleged to have been caused by the negligence of the defendants. The complaint alleges, in substance, that at the date of receiving the injury, and for some time prior thereto, plaintiff was employed by defendants in their saw-mill; that his regular work was to assist the man in charge of a “ scantling-machine and saw” for cutting lumber, plaintiff’s duty being “to put the lumber in place to be run through the machine and cut by the saw.” On or about February 14, 1884, the man regularly employed to run this machine became sick, and plaintiff was directed by the defendants to take his place for the time. The plaintiff expressed a doubt as to his ability to do so on account of his inexperience, but was assured by defendants that he was qualified to take charge of this work, and he did so. While engaged in this work, in removing some slivers from under the saw, plaintiff’s sleeve caught on a set-screw fixed upon and projecting from a shaft located below the saw, which shaft worked the rollers carrying lumber to the saw, and by means thereof the arm of plaintiff was wound around the shaft, and so broken as to necessitate amputation. It is alleged that the plaintiff did not know of this set-screw, and could not see the same, and ■was not acquainted with the danger of removing the slivers, and that in the attempt — 421 — to remove the same he acted in the same manner as he had seen the man do who had regular charge of the machine. The complaint further alleges that the work of running the machine was dangerous, and plaintiff was inexperienced and ignorant of the dangers attending the same, and that defendants knew this, and neglected to warn him of such dangers, or properly instruct him in such work. In their answer, the defendants allege that plaintiff was employed to take the place of the foreman on the scantling-machine, when for any reason necessary; that he had frequently done so, and was fully acquainted with the work, and never expressed any doubt of his ability to run the machine and saw; that he had been fully instructed and warned concerning the saw, and the mode of .using it, and of the danger of said employment; and that plaintiff knew the work was dangerous, and that it was fraught with danger to attempt to remove slivers from the saw when in motion. Plaintiff recovered a judgment for twelve thousand five hundred dollars and costs. The defendants appeal. The principles of law governing this class of actions are clearly defined. It is well settled that one who enters the service of another takes upon himself the ordinary risks of the employment; and if he is an adult, and engages to do a particular work," the employer has a right to presume, unless otherwise informed, that the employee is competent to perform it, and understands and appreciates such risks. But, on the other hand, when one who is known to be an inexperienced person is put to work upon machinery which is dangerous to operate unless with care, and by one familiar with its structure, the employer is bound to give him such instructions as will cause him to fully understand and appreciate the danger attending the employment and the necessity for care. ■ This rule is thus stated by the supreme court of Wisconsin: “ We think that it is now clearly settled that — 422 — if a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous, and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, in experience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them, and do his work safely with proper care on his part.” (Jones v. Florence Mining Co., 66 Wis. 277; 57 Am. Rep. 269.) It is true, this rule, which requires the employer to give proper instructions, is most frequently applied in cases where persons of immature years are employed about dangerous machinery, but the same principle governs where the person so put to work is of mature years, but without experience in the particular work, and without knowledge of the actual dangers attending it. But, of course, the fact that the person injured was of mature years, as was the plaintiff here, is a matter for the careful consideration of the jury in determining whether he fully understood and appreciated the dangers of his position. It is claimed by the appellants that they were not guilty of any negligence toward plaintiff, and that plaintiff, by his own want of care, contributed to the injury which he received.. In passing upon the question of defendants’ alleged negligence, it was necessary for the jury to determine,— 1. Was plaintiff in fact inexperienced in the work in which he was engaged? and if so,— 2. Were defendants informed of this fact? 3. If defendants were so informed, did they neglect to give him notice of the location of the set-screw, and to instruct him in the manner of running the machine, so as to guard him against the injury which he received ? — 423 — The verdict of the jury necessarily implies that all of these questions were answered affirmatively in the minds of the jury, and upon all of them there is a substantial conflict in the evidence, unless it can be said as a matter of law that upon the plaintiff’s own statement showing the length of time he had been employed as assistant on the machine, and how much he had himself run it in the absence of the foreman, the jury ought to have found that he was not inexperienced in the place he was temporarily filling, and not without knowledge of the location of the set-screw and the danger to be incurred from placing his hand where he did while the machine was running. It appears from plaintiff’s own testimony that he had worked inside of the mill, taking lumber from the big saw for nearly two years, and had been employed as assistant on the scantling-machine—that is, in putting the lumber in place to be cut by the saw—for about nine months, and during that time he had, upon different occasions when the foreman was absent, run the machine, in all, eighteen days prior to the accident. It does not appear that plaintiff’s duty as assistant was such as would necessarily give him knowledge of the structure of the machine, or of the existence of the projecting set-screw, which was a concealed danger. It is not shown that he had ever been called upon or that it was any part of his duty to become acquainted with this machinery, or to adjust it when out of order. It is doubtless true that some men with the same opportunity would have become familiar with its mechanism, and fully qualified to take charge of it, but it is a matter of common experience that all men would not. There is a difference in the capacity of men to acquire a particular knowledge of machinery, or of the arrangement of its parts, or manner of construction, some having greater power of observation, and more desire to investigate and understand, than others. The extent of plaintiff’s knowledge of this machinery was therefore a question of fact — 424 — for the jury to determine from all the evidence before them, and we think it was fairly submitted to them in the instructions of the court. The defendants insist that the plaintiff was himself guilty of contributory negligence in attempting to remove the sliver without stopping the machinery. We think, however, that upon the evidence in this case, this was a question of fact to be determined by the jury, and the finding upon this point would depend largely upon plaintiff’s knowledge, or want of knowledge, of the location of the set-screw. If he knew the screw was there and projecting, it was gross carelessness for him to place his hand where he did, with this shaft in motion. If he was ignorant of its existence, it was still a question for the jury to consider whether he was exercising due care in what he did, unless he knew that he could remove the sliver with safety to himself. In reaching a conclusion, the jury might properly consider that he had often seen such obstructions removed from near the same place when the saw was in motion, and had received no notice that it was dangerous to do so, and that to have stopped the machinery in order to remove the sliver would have occasioned delay in the work, and that it was not the custom to do so. It seems clear to us that the inference to be drawn from these facts would not necessarily be that the plaintiff was guilty of culpable negligence, and different persons might fairly differ as to the proper conclusion to be reached. In such a case, the question to be decided is one of fact for the jury, and not of law for the court. And when the matter has been passed upon by the jury, and the judge of the trial court is satisfied with their finding, the verdict is conclusive of the question here. The law upon this point is clearly stated in the case of Coombs v. New Bedford Cordage Company, 102 Mass. 585, 8 Am. Rep. 506, as follows: “ Whether it was possible for the plaintiff to have met with the accident from inadver — 425 — tence or want of acquaintance with the danger of his position, without being chargeable with a want of reasonable care, we think is a question to be submitted to the jury. The facts that he saw, or might have seen, the machinery in motion, and might have known that it was dangerous to expose himself to be caught in it, are considerations which should be regarded on one side. On the other, some allowance should be made for his youth, his inexperience in the business, and for the reliance which he might have placed upon the direction of his employers. It has been held in other cases that previous knowledge of a danger is not conclusive evidence of negligence in failing to avoid it.” In the case of Swoboda v. Ward, 40 Mich. 420, the plaintiff had been working in the mill for about fourteen days, carrying slabs from the gang-saws and placing them on the rollers, and when injured he had taken hold of a heavy slab, too heavy for one man to carry, and was pulling it, walking backwards, when he slipped back against the cog-wheels near the slab-run, and his feet were caught and leg drawn into the cog-wheels and permanently injured. It was shown that he had not been warned about the cog-wheels, and had never’noticed them until he was hurt, but that he could have seen the cogs if he had stopped work to look for them, and that he was without experience and knowledge in mills. Upon these facts, the court held that the question of contributory negligence was for the jury, and that the trial court erred in holding, as a matter of law, that there was such negligence. The court there said: “ The plaintiff, at the time of the injury, was properly engaged in the active discharge of his duty. He testified that he had not been warned about these cogs, and had not noticed them until after he was hurt. Contributory negligence presupposes the doing of some act which ought not to be done, or the omission to do something which should be done; in — 426 — other words, a want of due care. (5 Am. Law .Reg., N. S., 405 n.) If he did not know of the exposed and dangerous condition of these cogs, then by remaining at work he was not doing something which he should not have done, and the effort he was making, at the time of the accident, to remove the slab showed no want of due care on his part, but, on the contrary, was commendable. Even if he had known of the cogs and their unguarded condition, it would not thereby conclusively follow that he could not recover. Other facts and circumstances would have to be considered in connection therewith,— his age, his intelligence, his experience, and such like,— so that the jury might ascertain and determine whether he fully understood and appreciated the danger.” To the same effect is Dowling v. Allen, 74 Mo. 13; 41 Am. Rep. 298. This case again came before the supreme court of Missouri, reported in 102 Mo. 213, and the same principle was reaffirmed. The jury must have found in this case that plaintiff was without knowledge of the existence of the set-screw, and did not know that be was exposing himself to danger from it when he placed his hand where he did. We do not feel authorized to disturb the verdict of the jury on this point. The instruction complained of, to the effect that if defendants were negligent in not giving proper instructions to plaintiff, it was immaterial whether his hand was pulled off by the.screw or cut off by the saw, could not, upon the evidence before the jury, have injured the defendants. We. have not overlooked the fact that in this case the defendants did not manage their mill in person, and did not personally employ plaintiff, or have any communication with him personally. If their superintendent, or other foreman, was negligent in putting the plaintiff to work without proper instructions, such negligence is in law that of the defendants, and they are liable for it. The defendants have appealed from the order of the — 427 — superior court made April 3, 1888, denying their motion for a new trial, and upon the argument of this case suggested a diminution of the record, and asked leave to file, as an “ additional record, ” the previous order of that court made in this action January 30, 1888, granting a new trial thereof, and the subsequent order vacating and setting this aside, and reinstating the motion for a new trial. It is claimed by the appellants that the power of the court was exhausted when it granted the motion for a new trial, and that its subsequent orders vacating this and denying their motion for a new trial were absolutely void. This additional record is not embodied in an5' bill of exceptions, and we do not think it forms any part of the record on this appeah Judgment and order affirmed. McFarland, J., Garoutte, J., and Beatty, C. J., concurred. Harrison, J., being disqualified, did not participate in ihe foregoing opinion.