Bohn Manuf'g Co. v. Erickson

SANBORN, Circuit Judge, (after stating the facts.) It is the general rule that a servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they aré known to him, and so far as they would have been known to one of his age, experience, and capacity by the use of ordinary care. He does not assume latent dangers known to the master that are actually unknown to him, and that one of his capacity and experience would not have known by the use of ordinary care. It is the duty of the master to notify the servant of such dangers. Obviously the line between dangers apparent and latent varies with the varying experience and capacity of the servants employed. Risks and dangers that are apparent to the man of long experience, and of a high order of intelligence, may be unknown to the inexperienced and ignorant; hence, if the youth, inexperience, and incapacity of a minor who is employed in a hazardous occupation are such that a master of ordinary intelligence and prudence would know that he is • not aware of or does not appreciate the ordinary risks of his employment, it is his duty to notify him of them, and instruct him how to avoid them. This notice and instruction should be graduated to the age, intelligence, and experience .of the servant. They should be such as a master of ordinary prudence and sagacity would give under like circumstances, for the purpose of enabling the minor not only to know the dangerous nature of his work, but also to understand and appreciate its risks and avoid its dangers. They should be governed, after all, more by the experience and capacity of the servant than by his age, because the intelligence and experience of men measure their knowledge and appreciation of the dangers about them far more accurately than their years. Pressed Brick Co. v. Reinneiger, (Ill. Sup.) 29 N. E. Rep. 1106, 1107; Dowling v. Allen, 74 Mo. 13, 16; Railway Co. v. Valirius, 56 Ind. 511, 518; Buckley v. Gutta Percha Co., (N. Y. App.) 21 N. E. Rep. 717; Railway Co. v. Frawley, (Ind. Sup.) 9 N. E. Rep. 595, 598. On the other hand, no duty rests upon the master to notify, the minor of the ordinary dangers of his occupation that are so open and apparent that one of his age, experience, and capacity would, under like circumstances, by the exercise of ordinary care, know and appreciate them. No duty rests upon him to notify the minor of the ordinary dangers of his employment that the latter actually knows and appreciates. As to these dangers and risks that he actually knows and appreciates, and as to those that are so apparent and open that one of his age, experience, and capacity would, in the exercise of ordinary care, know and appreciate them, the minor is governed by the same rules as the adult. He assumes these risks by entering upon or continuing in the employment, and no negligence can be charged to the master, and no liability can be fastened upon him, because he fails to give futile notices and warnings of these dangers, which the minor knows and appreciates, or ought to know and appreciate. Engine Works v. [947] Randall, 100 Ind. 293, 298, 300; Berger v. Railway Co., 39 Minn. 78, 38 N. W. Rep. 814; Sullivan v. Manufacturing Co., 113 Mass. 396; Fones v. Phillips, 39 Ark. 17, 38. Thus, if a master employs a hoy of ordinary intelligence, 15 years of age, to work upon the roof of a building, and he steps oil and falls to the ground, the master cannot be charged with negiigence because he did not notify Mm that his body would be forcibly drawn to the earth if he stepped off into space. If a blacksmith employs such a boy to assist him about his forge, and he places his hand in the fire and burns it, the master is not chargeable with negligence because he did not notify the boy that the fire would burn Ms flesh. These dangers are patent, and no boy 15 years of age, of ordinary capacity, would fail to appreciate them. And if, in the case at bar, the plaintiff, after entering upon his work at the relishing machine weeks before, after repeatedly seeing the revolving knives cut the wooden rails, permitted his hand or his coat to come under those knives, uninfluenced by the latent danger from the suction of which he was not aware, the defendant cannot he charged with, negligence, and made liable here, because it did not notify him that those knives would cut his fingers, and tear and draw his clothes, if he placed them within their reach. These dangers were apparent A boy of his age and intelligence, with the experience he had after working in that factory four months, and at this machine at frequent intervals for several weeks, must have known and appreciated them. It did not require a knowledge of the English language for Mm to see that the revolving knives cut the wood, and to know and appreciate the dangers of allowing his hands or clothes beneath them. Fortunately the lessons taugh t and warnings given through the eye are not limited to the language of any nation. At intervals for some weeks, and for three full days in the aggregate, before his injury, he pushed the wooden rails against these knives, and saw them cut the shavings from them. No words in any language could have added to the knowledge or appreciation of the danger of permitting his hands or clothes to come under these revolving knives which this visible demonstration of the power of this machine must have given him. Nor are we left to presumption here. The record discloses the fact that he did know and fully appreciate these dangers, and that he knew how to avoid them. He testifies that he knew the knives went around and cut out the wood, and so he was careful when he was cleaning and when he was cutting, so as not to get his hands near them. If, then, there were no dangers causing the injury but these, which were so apparent, and so well appreciated by the plaintiff, the defendant was not liable for it. But if, on the other hand, these revolving knives created a strong suction, which was liable to draw articles to them, and this was known to the defendant and unknown to the plaintiff, here was a latent danger that it was the duty of the defendant to inform the plaintiff of; and if it did not do so, and the injury resulted from this hidden risk, it was the natural result of the defendant’s negligence, and it was liable for the resulting damage. The record disclosed no other danger connected with this work [948] which the plaintiff did not appreciate, and thus the vital issue in the case became whether or not such a suction was created by the revolving knives, for, if there was no suction, there was no latent danger, and could be no recovery. The existence of this suction cannot be relegated to the rank of one of many circumstances in this case tending to prove negligence, others of which were the direction to the plaintiff to work at the relishing machine, and the example set by him by brushing away the shavings from the revolving knives, because whether or not this direction and this example were negligent depended upon this very issue whether or not the dangerous suction existed unknown to the plaintiff. Neither the direction nor the example would entitle the plaintiff to recover if the injury was the result of dangers that were apparent to and appreciated by him, especially since he entered upon and continued in the employment without objection from four to eight weeks after he was directed to work at the relishing machine. Anderson v. Morrison, 22 Minn. 274, 276. According to his own testimony, all the dangers of his occupation were apparent and appreciated by him, except that from this suction; hence, before a recovery could be had, on account of this direction or example, the existence of the suction and its latent danger must be established. That the plaintiff and his counsel appreciated the importance of this issue at the commencement of this action, and based the plaintiff’s right to recover'upon it, is demonstrated by the complaint. His counsel understood that his client could not recover on account of risks and dangers that he was aware of and appreciated, and that he could only recover in case his injury was the result of some danger of which he was not apprised. He also knew that, as his client was the only person who saw the injury inflicted, it was his duty to disclose in Ms pleading the latent danger that caused it. This he did, with admirable clearness and certainty. After alleging the age, inexperience, and employment of the plaintiff, and making some general allegations of the duty of the defendant, and its negligence in placing him at work at the relishing machine, and in instructing him to clear off the shavings from about the revolving knives with his hands, he averred that it was dangerous to do so, because “the rapid revolution of the knives created a strong suction towards the place where the knives were revolving by which the hand of any person placed within the force ■of said suction was liable to be drawn into and under said knives with such force and violence that it would be extremely difficult, if not impossible, to withdraw the same before the hand had been cut and lacerated by said knives;” that the defendant was aware of this suction and its danger, and the plaintiff was i gnorant of it; and that when the injury was inflicted “the fingers of his said left hand were, by said powerful suction, drawn towards and under said knives,” and he was thus injured. The existence of such a suction was denied by the defendant, and this issue was spiritedly contested at the trial. The plaintiff’s testimony sustained the above allegations of his complaint. He said he did not know of this suction before the accident; that his hand was sucked and drawn into the kmves: that his coat first caught, and drew his hand in. [949] T'nder this pleading and evidence it is plain that the only real issue left for the determination of the jury at the close of the trial was whether or not there was a suction towards the place of the revolving knives when this machine was in operation which caused the plaintiff’s injury. This question should have, been clearly and sharply presented to the jury for their determination by the court below. This the defendant requested the court to do. It asked that the following instruction should be given: “The plaintiff claims that the defendant did wrong and was negligent in not telling him that the knives might suck his hands into them, whereby 3io might get cut. Ho admits by his own evidence that lie knew the knives would’cut him, if he got in their way. So, if you find by the evidence that there was no suction at all about the machine which would draw the hand-of the plaintiff into the knives, then the defendant was not negligent, and the plaintiff cannot recover.” The court refused to give the instruction, and did not mention this issue at all in its charge. This was error. This request of the defendant should have been given. This record discloses, as we have shown, that this danger from the alleged suction was the only peril pleaded or proved connected with his employment which was not patent to and fully appreciated by the plaintiff before the injury. This was the only latent danger on which a recovery could have been based. If, however, there was no suction, there could have been no latent danger from it, and therefore no recovery. The jury should have been so instructed. The judgment below is reversed, with costs, and the cause remanded, with instructions to grant a new trial.