Craven v. Smith

WiNslow, J. It has seemed hecessary to set forth the charge of the court somewhat at length, in order to appreciate the significance of the errors claimed in it. The serious difficulties with the charge are not in the statement of general principles of law, but in their application to the case in hand. We see no good ground of complaint against the first part of the charge, which discusses the master’s duty to warn and instruct a young and inexperienced employee who is set to work upon a dangerous machine, although the second sentence excepted to is manifestly incomplete, evidently by inadvertence; but when, in the third sentence excepted to, the trial judge proceeds to state under what circumstances the plaintiff may recover, we think there is manifest and prejudicial error. Here it is stated substantially that if the work was dangerous and the plaintiff, on account of his youth and inexperience, did not comprehend the danger, then, if he was exercising ordinary care, he may recover, though the injury was the result of the negligence of co-employees. This statement is erroneous both in what it states and in what it does not state. It states that a recovery may be had, even though the injury was the result (plainly meaning the sole result) of a co-employee’s negligence. This is not the law. Undoubtedly, a recovery may be had against the master for injuries resulting in part from his negligence and in part from the negligence of a co-employee. Sherman v. Menominee R. L. Co. 72 Wis. 122. But if the injury was solely the result of the co-employee’s negligence, the master is not liable. [126] Again, tbe instruction says, in effect: Given a dangerous-machine, an uninstructed, inexperienced employee, not comprehending the danger, but using ordinary care, and an injury to the employee, a recovery must follow. There is-another necessary element which is not stated, and that is-that the injury must have been directly caused by the dangerous character of the machine or employment; This, factor was omitted, and it is a necessary factor, because it-does not follow necessarily from the happening -of an injury in the use of a dangerous machine that the dangerous character of the machine caused the injury. It may have been a pure accident, for which- no one is responsible. Again, it-is not strictly accurate to acquit an employee using a dangerous machine of assumption of the risk simply because he did not comprehend the danger. The true test is whether he ought to have comprehended it; that is, whether an ordinarily prudent person of his age and experience, under like circumstances, would have appreciated the danger and risk. Luebke v. Berlin Machine Works, 88 Wis. 442. The next exception to the charge is also well taken. Here the court says, in substance, that if the defendant did not furnish the plaintiff proper appliances for riding the horse, and the injury arose from such failure, then the plaintiff should recover unless he is chargeable with assumption of the hazard. This omits the element of ordinary care on the part of the plaintiff, and leaves the jury at liberty to find a verdict for the plaintiff, although they may be satisfied that the injury was directly caused or contributed to by the plaintiff’s lack of ordinary care. This error is emphasized by what is said in a following paragraph, where the jury are told that, if they find the work was not dangerous, they are then to inquire whether the plaintiff was exercising ordinary care, which is plainly calculated to lead the jury to think' that this question does not arise incase they find the occupation a dangerous one. Of course, the question whether [127] plaintiff was exercising ordinary care is present, whether the* occupation was dangerous or not. The charge is also objectionable where it states that the-question whether the accident was caused by the negligence of the co-employee only arises in case they find the work was not dangerous. "What has before been said as to the effect of the negligence of co-employees is here applicable. There was evidence offered and excluded to the effect that a year' or so. after the accident, when the injury over the-eye had completely healed, a physician proposed to perform an operation, by which he thought the use of the eye could be measurably benefited, and the plaintiff and his mother refused to allow it to be performed. Eull evidence was-allowed by physicians, pro and con, as to whether such an operation was practicable or would be beneficial, and the jury were fully instructed, in effect, that no damages could be allowed plaintiff if such an operation could be successfully performed. Under these circumstances, we see nothing prejudicial to the defendant in the ruling. By the Court.— Judgment reversed, and action remanded for a new trial.