Siddall v. Pacific Mills

Knowltoh, J. The direct and proximate cause of the injur <! from which the defendant suffered was the negligence of 8» [382] fellow servant. It was negligence of such a kind that no instruction which the defendant could have given the plaintiff in-regard to the method of doing his work would have been likely materially to diminish the risk of injury from it. The risk of injury from negligence of his fellow servants is one which an employee assumes by virtue of his contract to engage in the service, even though neither he nor his employer can foresee the dangers which may result from such negligence. Ordinarily, the employer is not called upon to instruct a young and inexperienced person in regard to dangers which can only result from the negligence of fellow servants. It is not to be presumed that others will neglect their duties, and a boy cannot expect to be instructed as to what to do in a situation which is not to be expected in the ordinary course of the business, and which can only exist through the fault of another. But if we assume in favor of the plaintiff, without deciding, that the risk of particular' dangers from this cause may sometimes be so great and so obvious to the employer that he ought to give an inexperienced boy warning and instruction in regard to them, he is called upon so to do only when he himself ought reasonably to anticipate them, and when his instruction would be likely materially to diminish the danger to his employee. In the present case there is no evidence to warrant a finding that he owed the plaintiff such a duty. The danger of such an injury was very remote and improbable. It could only come from negligence which the employer had no reason to expect. Moreover, nothing which the plaintiff could have done consistently with the expeditious transaction of the work could have relieved him from the possibility of such an accident'. The solution of caustic soda might be turned on after he had entered the tank through the man-hole, as well as before, and he would have no means of knowing it. In the present case, Elliott, who was called by the plaintiff, testified that he turned it on either after or before, without professing to know more definitely. We are of opinion that there was no evidence on which the jury could have found that the accident resulted from failure of the defendant to perform any duty which it owed to the plaintiff. Judgment on the verdict.