Roberts v. Porter Manufacturing Co.

Fish, J.

The law imposes upon the master the duty of exercising ordinary care in furnishing to his servants machinery equal in kind to that in general use, and reasonably safe to all persons who operate it with ordinary care and diligence; and if there be latent defects in the machinery, or dangers incident to its operation, unknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto. Civil Code, § 2611. In the case under consideration, there was no evidence submitted by the plaintiff to show that the machine furnished by the defendant company was not equal in all respects to those generally used in other mills, or that it was not reasonably safe for any one to operate it with ordinary care. It was not contended by the plaintiff that there was any hidden defect in the machine, or that there was any latent danger in working it; but he claimed that, on account of his youth and inexperience, he did not comprehend the risk incident to its operation. While it is true that the law does not exact of a child the ordinary care which every prudent man would exercise under similar circumstances, yet it is required to usé due care according to its age and capacity, that is, such care, as stated in section 2901 of the Civil Code, as its mental and physical capacity fit3 it for exorcising, in the actual circumstances of the occasion and situation under investigation. Considering that the plaintiff in this case was fourteen years old at the time he was hurt, that he had been working for two years at the same machine which injured him, that when first put to -work at it he had been instructed by the foreman how to operate it, that he had been warned “to be careful,” and that the certainty of having his finger mashed if he should allow it to get between the cog-wheels was so apparent that, in view of his age, intelligence, and experience, he was bound to have known it, we are constrained to hold that, by the use of such care as his capacity fitted him for exercising, the plaintiff could have avoided the injury, and that therefore there was no error in granting a nonsuit.

Judgment affirmed.

All the Justices concurring.