Leistritz v. American Zylonite Co.

Allen, J. 1. The question to Pierce was properly excluded. So far as appears, his only knowledge of the circumstances of the accident came from what the plaintiff had just told him. If he said that it was just like Rolf to set the plaintiff at work at a dangerous machine he did not know anything about, the statement so far as it involved matters of fact rested wholly upon what the plaintiff had just told him; and so far as it involved matter of opinion, the defendant was not bound by it. 2. Two witnesses were asked whether the plaintiff was “ above or below the average intelligence of a boy of his age.” His age was eighteen years and eight months. The questions were properly excluded. They did not go to the extent of showing that he was manifestly incapable of understanding the risk without instruction, so that the defendant knew, or from his appearance ought to have known, that cautions and instructions were necessary. Ciriack v. Merchants' Woolen Co. 151 Mass. 152. The case does not call for any nice consideration of what might be shown in the case of a young child, or under other circumstances. It is enough to say, that under the circumstances of the present case, in view of the plaintiff’s age, and of his long examination as a witness in the presence of the jury, the questions were of no material significance. 3. The ruling that there was not sufficient evidence to warrant the jury in finding a verdict for the plaintiff was clearly right. There was nothing to show that he had ever been set to work feeding such a machine, which was the only dangerous part of the work. He testified himself that three different workmen had stopped him from working at feeding. Rolf did not tell him to feed the machine, and there was no evidence that Rolf 385 knew that the plaintiff had taken or was likely to take any other than his usual place at the other end of the machine. Without entering upon other considerations, we see no evidence of negligence on the part of the defendant. There was no need of instructing the plaintiff as to work which he was not expected to do. Exceptions overruled.