McDougall v. Ashland Sulphite-Fibre Co.

PxmsET, J. 1. The plaintiff was a common laborer, and had no experience in working with or around a barker or similar machinery. He had no knowledge or familiarity with the matter of the necessity or use of a belt shifter, or of the manner of shifting belts, though he had worked in •and around sawmills. He did not know or understand that the manner in which he had been instructed to shift the belt on the barker was dangerous. The defendant’s foreman in charge evidently understood that the plaintiff was without proper knowledge or experience in respect to the use or operation of the machine, and that it was necessary to instruct him. It is conceded that he proceeded to instruct him how he was to shift the belt, though there is a conflict of evidence as-to what the instructions really were. It is evident from the verdict that the jury believed the testimony of the plaintiff [390] as to the instructions given, and as to his having followed them. In Jones v. Florence Mining Co. 66 Wis. 277, this court said: “ It is now clearly settled that 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, inexperience, 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 charactei’, 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. This rule does not in any manner conflict with the other well-established rule that the employee in any particular business assumes all the risks and hazards which are incident to such business, when the employee is of sufficient intelligence and knowledge to comprehend the dangers incident to his employment; and in case of an adult person, in the absence of evidence showing the contrary, the presumption is that the employee has sufficient intelligence to comprehend the dangers incident to his employment.” Where it is necessary that the employee should be instructed in respect to the dangers incident to the employment, neglect to discharge such duty is. considered negligence on the part of the employer; and an employee does not assume the risk of the dangers incident to such hazardous employment, because he does not comprehend them, and the law will not therefore presume that he contracted to assume them. It was a fair question for the jury in this case, upon the evidence, whether the plaintiff was fairly and properly cautioned and instructed in respect to the manner of shifting the belt, and also whether the barker was equipped, and in [391] a reasonably safe and proper condition for use without a belt shifter. The evidence tends to show that the plaintiff had no knowledge or experience sufficient to enable him to ■judge whether the shifting of the belt in the manner he had been instructed was or would be attended with danger. It was for the jury to say, under the circumstances, in acting as he did and in pursuing the instructions he had received from the foreman, whether the plaintiff assumed the risk. “ The plaintiff cannot be supposed or assumed to have accepted in advance a peril which he could not estimate, and the extent of which, for lack of experience, he could not have known. "Where there is any doubt whether the employee was acquainted, or ought to have been acquainted, with the risk, the determination of the question is necessarily for the jury.” Rummell v. Dilworth, P. & Co. 111 Pa. St. 343, 351; Nadau v. White River L. Co. 76 Wis. 132. There is no evidence tending to show that the plaintiff’s attention had been called to anything to indicate that it was dangerous or hazardous to pursue the course he did. It cannot, we think, be fairly said that he assumed any risk or danger not incident to the service, unless he had notice of it; nor that he is chargeable with negligence in following, as he did, the instructions of the foreman of his employer, unless the risk and danger of so doing were obvious and plain to an employee of ordinary intelligence and judgment. Where the risks and dangers are visible and any man of ordinary intelligence and in the exercise of ordinary care, although not an expert in the business, could not have failed to see and comprehend them, the employer is under no legal obligation to warn the servant of danger.. Put if there exist facts known to the employer, and unknown to the employee, increasing the risk of the employment, the employer is bound to disclose such facts to his employee; and, if he fail to do so, such failure would render him liable for an injury resulting from the danger which was known to the employer, and unknown to the employee. Upon the facts appearing in the [392] evidence, we do not think that the court could rightfully pronounce against the plaintiff, either that he assumed the risk of any danger not fairly incident to the employment, or that he was negligent in accepting and continuing in the' employment as he did. He was a common laborer, and not familiar with the use of machinery. The case falls within the rule so often declared and applied in cases of this character, that negligence is an inference to be drawn from the facts and circumstances disclosed by the evidence, and that when such facts and circumstances, though undisputed,, are ambiguous and of such a nature that a reasonable man, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, the question of'negligence should be submitted to the jury. And so as to the assumption of risk. Kaples v. Orth, 61 Wis. 531; Valin v. M. & N. R. Co. 82 Wis. 6; Hill v. Fond du Lac, 56 Wis. 242. The duty of the trial court in such cases was discussed in O’Brien v. G. & N. W. R. Co. 92 Wis. 340; and the rule stated in Jones v. C. & N. W. R. Co. 49 Wis. 352, was approved and applied, that, if the plaintiff gives any evidence to support his claim, the case must be submitted to the jury, although, in the opinion of the trial judge, it may be insufficient to sustain a verdict, or the decided weight of evidence is for the defendant. In such case it is the duty of the court to submit the matter to the jury under proper instructions,, and take their verdict thereon. In Bouck v. Enos, 61 Wis. 661, the court said: “It is the province of the jury to determine, not only the credibility of witnesses and all disputed facts, but all conflicting inferences reasonably drawn from undisputed or admitted facts.” In Kruse v. C., M. & St. P. R. Co. 82 Wis. 568, the court say: “ The long-established rule of this court is that a verdict for the defendant should only be directed when the plaintiff’s evidence, under the most favorable construction it will reasonably bear, including all reasonable inferences from it, is insufficient to justify a verdict in his favor.” Manifestly, the rule is the393 same in respect to directing a nonsuit. Eor the reasons already stated, we think the case was properly submitted to* the jury. The bill of exceptions does not show that any exceptions were taken to‘the instructions to the jury, nor to the submission of any of the questions stated, or to the refusal to submit any, and error cannot now be assigned in respect to these matters. 2. The verdict in this case is not a special verdict, in any proper sense of the term, but it is a general verdict, with answers to special questions submitted therewith. The question whether the verdict, if regarded as a special verdict under the statute, is not so defective that it would not support the judgment, occurred for consideration; but 'the verdict is a general one, with answers to certain questions submitted with what, in substance and effect, is a general verdict, finding all the issues for the plaintiff, under sec. 2858, S. & B. Ann. Stats. Schatz v. Pfeil, 56 Wis. 429; Oliver v. Morawetz, ante, p. 332. The court was not required by the statute to directa special'verdict when not so requested by either party; and the mere request by one party, as in the present case, that certain specific questions should be submitted as a special verdict, is not sufficient, as it was expressly held in Fenelon v. Butts, 53 Wis. 346, 352, that the court was not required by law to thus submit such questions. What questions should be submitted to the jury to answer in connection with a" general verdict is a matter wholly within the discretion of the trial court; and within the decision in Fenelon v. Butts, supra, the verdict was clearly sufficient under the statute (sec. 2858, S. & B. Ann. Stats.), and concluded the entire issue. - It follows that the judgment of the circuit court is correct and must be affirmed. Py the Ooivrt.— The judgment of the circuit court is affirmed.