Luebke v. Berlin Machine Works

Pinney, J. The evidence tends very strongly to show that the dangers to which the plaintiff’s intestate was exposed in his service and in crossing the foot bridge with the wheelbarrow loaded with flour, whether arising from the defective and dangerous construction of the bridge or the [448] use of the worn out and rickety wheelbarrow, were open and obvious, and that he must have been familiar with the situation for a period of about three months, during which he was engaged in the core room, and immediately prior to the accident. Had he been an adult, it is difficult to see upon what ground it could be said that he had not, as a matter of law, by continuing so long in the service of the defendant, assumed the risk of injury from those causes, so that the case ought not to have been submitted to the jury. It is well settled that if the alleged defect or element of danger is such that, in the exercise of ordinary care, the servant ought to have observed it and comprehended the danger likely to result, then he assumed the risk if he continued in the employment. Haley v. Jump River L. Co. 81 Wis. 412, 421, 425; Dorsey v. Phillips & C. Const. Co. 42 Wis. 583; Ballou v. C. & N. W. R. Co. 54 Wis. 257; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136. The servant must take ordinary care to observe and ascertain whether any or what dangers are incident to his service. If the defect or danger is open and obvious, knowledge of it on his part will be presumed or imputed to him as a matter of law; and an adult servant is presumed to possess ordinary intelligence, judgment, and discretion to appreciate such danger, so as to regulate his conduct and avoid it. Knowledge of the danger, and consent to continue in the service notwithstanding, is in such case imputed to the servant; so that if he subsequently suffers injury in consequence thereof he has no right of recovery against the master. This view is in accordance with what was held in Jones v. Florence M. Co. 66 Wis. 268, 277. The same rule applies to the case of an employee who is a minor, where the defect or danger is open and obvious, in so far as he is of such age, intelligence, discretion, and judgment as to enable him to comprehend the situation and appreciate the danger incident to the work or employ449 menfc. Subject to this qualification, knowledge of the defect or danger is to be imputed to him in like manner as to an adult. It is, however, a question for the junr to determine upon the evidence whether a minor servant was of sufficient age, intelligence, discretion, and judgment to bring him within the operation of the rule applicable to adult servants. Chopin v. Badger P. Co. 83 Wis. 192. In the absence of proof, it is fair to presume that he possessed these characteristics in the degree usual to persons of his age. Because the question was one for the jury, the defendant’s motion for a nonsuit and the request that the jury be directed to find for the defendant were properly denied. The instruction asked by the defendant, and refused, should, we think, have been given. The consequence of its refusal was that the defendant was denied the benefit of the rule as to imputed negligence and assumed risk, to the extent it was properly applicable to the ease, and the case wms made to turn, so far as open and obvious defects and danger were properly an element in the case, not upon what the plaintiff’s intestate ought to have known and understood, in view of his age, intelligence, discretion, and judgment, but upon what he in fact knew or comprehended as to the danger to which he was exposing himself. He was bound to. exercise the degree of intelligence, knowledge, and judgment he actually possessed, as much so as an adult, and must be held t-o have assumed the risk if he exposed himself to a danger which was open and obvious and which he was capable of perceiving and fully appreciating, whether he actually appreciated and comprehended it or not. The general charge does not contain any instruction equivalent to the one asked, and entirely excluded from the consideration of the jury the material question whether the plaintiff, in view of his age, intelligence, discretion, and judgment, ought reasonably to have known [450] and understood the dangers to which he was exposed in his employment. The effect of this error is indicated by the answers of the jury to questions submitted to them, as above stated. Other errors were assigned, but, as the questions thus presented may not arise on a new trial, it is not necessary to consider them. For the reasons stated, the judgment of the circuit court must be reversed. By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.