DocketNumber： No. 2,518
Citation Numbers： 37 Mont. 426, 97 P. 843, 1908 Mont. LEXIS 69
Judges： Brantly, Holloway, Smith
Filed Date： 10/24/1908
Status： Precedential
Modified Date： 10/19/2024
delivered the opinion of the court.
This action was brought in the district court of Yellowstone county to recover damages for personal injuries suffered by the
Plaintiff alleges in his complaint, among other things, as follows: “That on or about the sixteenth day of August, 1906, he was in the employ of defendant at a certain brickyard, in or near the city of Billings, and that the duties of his said employment were to throw.in and out of gear, by means of a lever, a certain lugging machine used in the manufacture of brick in said yard, and to oil said machinery; that the plaintiff was at said time only thirteen-years of age, and was wholly unskilled in the use of machinery, and had been in the employ of defendant for a period of only three days; that while so engaged in said employment, and on or about said date, the said defendant, without explaining to said plaintiff the dangers to be apprehended from said machinery, carelessly and negligently directed this plaintiff to take a certain hose and turn water upon the clay that was being fed through said lugging machine, and to feel of the clay that was being turned out of said machine to ascertain as to the degree of moisture therein; that, in disregard of its duty, the said defendant had carelessly and negligently allowed certain revolving knives connected with said machinery to be and remain unboxed and unguarded in any manner whatsoever, and that said knives were located in that portion of said lugging machine where plaintiff was so negligently directed to use said hose and to feel of the clay so emerging from said machine, as aforesaid, and that, in further disregard of its said duty, defendant carelessly and negligently furnished for use in turning the water upon said clay, as aforesaid, a hose which was wholly defective and unfit for use, in that the appliance for controlling the size and force of the stream emerging from the nozzle thereof had become so weak as to slip and allow the full force of the water to suddenly issue from said nozzle, of all of which defects defendant well knew, or, in the exercise of due care, ought to have known; that in obedience to the direction of said defendant, and while in the exercise of due care on his part, and in ignorance of the
The plaintiff testified in his own behalf as follows: “I was fourteen years of age the 14th of last December. Previous to coming to Billings, I had had no experience in connection with machinery. I went to Mr. North [a stockholder in the defendant company], and told him that I had heard he wanted a boy at the brickyard to throw the lugging machine in and out of gear, and I asked him if I could get the work to do myself, and he said he didn’t know whether I was large enough or
Over the objection of the defendant that the testimony was incompetent, the plaintiff was allowed to testify that two or
On cross-examination the plaintiff testified: “They had a pipe right over the machine, with a hole in the pipe where the water flowed through and sprinkled and wet the clay as it came into the machine. That was where he [the foreman] directed me to moisten the dirt. He also directed' me to moisten the clay at the mouth of the machine, where the clay fell out before it came into the press. When the clay came out of the machine, he told me in case the clay or dirt got too dry to moisten it with the hose at the north end of the machine. On the north side of the machine, on the outside, there were two knives. These knives were of the same fashion as those on the inside, only smaller and not quite so thick. They were about seven-eighths of an inch thick, about three inches wide, and about seven inches long. There were only two there. When these knives were turning around, when the clay was going through the machine, they didn’t go very fast, but they went pretty slow. The first day after I went to work there, I put water down in the chute that went down on the brick machine. I could not say how many times. I put water in there a great many times every day, and felt of the clay coming out of the machine. The hose I was using was just a common hose. It was just about the size of a common hose that they use for housework, such as they use for watering lawns — just a common hose. It was plenty long enough to reach to the north end of the machine from that pipe over the machine. I don’t know how the nozzle of the hose was broken shortly after I went to work there.
On the part of the defendant two qualified witnesses testified that the so-called pugmill or lugging machine referred to in the complaint and by the plaintiff, was such a machine as is used by brick manufacturers generally, one that has been in constant use in brickmaking plants for over thirty years.
Charles H. Bray, a practical briekmaker, testified: “I never saw a guard placed over these outer knives. This is a machine which is practically compulsory for any manufacturing company to have that is manufacturing brick by this process, as it is just as necessary to have that machine as it is to have a brick machine itself. This is a machine that is ordinarily used in the clay business, and it is in all the factories making brick by that process. There has been practically no change in it, no improvements made on it at all. As regards these knives that revolve around the end where the clay emerges and dangers incident to the operation of the machine, they are now precisely the same as they were as long ago as I can remember. In some plants the machine is operated by a boy, and in some by a man. The clay is ordinarily moistened in this machine from a water faucet. In the plant with which I am connected the material is shoveled into the machine. In some places it is the custom or usage among men to employ boys to operate these machines, and in some places they.don’t. I have seen boys operating machines where they are run as this one is here, but, where they do shoveling, you have to have men to do the work.”
Edward J. Shaw testified: “I am a Northwestern representative with the American Clay Machinery Company of Bucyrus, Ohio. I have followed that business going on thirty years. That company manufactures all kinds of clay-working machinery. I think I am acquainted with the particular pug-mill in controversy in this case. I am acquainted with the customs of the business in practically all of the Northwest. I do
The defendant then offered to prove by the last two witnesses that the pugmill in. question was not a dangerous machine, and that the defendant had no reason to believe that there was any danger connected with the use of such a machine, and that neither of them ever knew of an accident happening similar to the one involved in this ease. The court refused to allow the proof to be made.
Austin North testified: “I am a stockholder in the Slater Brick Company. At the time the plaintiff was working for that company, the hose was entirely new. There were no defects in the nozzle of the hose nor in the valve. The entire plant was new, and we had been handling it three or four days, possibly five days, getting the plant started. ■ An inch and a quarter pipe conducted the water into the building. The force of the water was medium. I would not be prepared to say how large a pressure we had. If you took a three-quarter inch hose and turned the water on full, wide open, you would be able to throw the water about twenty feet from the nozzle.”
August Bonnet testified: “My business is that of a construction engineer, building plants all over the country. I was superintendent of the work at the Slater Brick Company’s plant, when it was put in operation. The plaintiff came to the works, and asked me if he could have some work. I showed the boy what to do. I showed him the machine, and also the lever to throw the machine in and out of gear and where the spray, valve was, and the other one at the north end of the mill where the hose was attached, the valve here, and showed him how to handle the nozzle and how to tell with his hand when the clay was-dry; not to go near the front, but to keep away from there-
“ (1) That there is no evidence tending to prove that the defendant was negligent as alleged in plaintiff’s complaint, in that: (a) There is no evidence tending to show that the defendant was negligent in failing to provide the outer knives of said pugmill with a box or guard, but the evidence affirmatively shows that said pugmill was á machine in common use among daymen, and was commonly and generally operated without a guard or box over said outer knives, (b) There is no evidence tending to show that the defendant knew, or ought to have known, of the defect existing in said hose, but it affirmatively appears from the evidence that it had no such knowledge, and, even if the defendant knew of such defect, the injury resulting therefrom was one such as the defendant could and would not have reasonably anticipated, (c) There is no evidence tending to show that the defendant was negligent in failing to warn the plaintiff of any dangers, for the reason that the same were apparent, and it affirmatively appears from the evidence that the plaintiff knew and appreciated, or ought to have known and appreciated, such' dangers.
“(2) That the plaintiff assumed the risk of such injury in the mode in which it occurred, for the reason that the dangers arising from said pugmill were apparent, and the plaintiff knew and appreciated, or ought to have known and appreciated, the dangers arising from the operation of such machine, in that the plaintiff has exhibited a thorough knowledge of said pugmill, and testified positively that he knew that, when his hand came in contact with one of said knives, it was liable to be injured; and from the knowledge that plaintiff has exhibited concerning said pugmill the only inference that can be deduced is that plaintiff knew that his hand might come in contact with said knife, and thereby be injured.”
This motion was overruled, and afterward the jury returned a verdict in favor of the plaintiff for $5;000 damages. The
It has required some research to determine how the questions argued in the briefs and at the bar of this court are raised by the record. No motion for a nonsuit was interposed, and no request was made that the court withdraw from the consideration of the jury any of the alleged grounds of defendant’s negligence set forth in the complaint. If there was testimony sufficient to go to the jury on any of these alleged grounds, the motion to direct a verdict was properly denied. Indeed, the appellant itself offered instructions touching all of the alleged acts of negligence, which instructions the court gave. In order, then, to come to a proper consideration of the appeals, we must confine ourselves to the specification of error that the court was wrong in denying defendant’s motion for a new trial, and in submitting certain instructions to the jury and refusing others. The two instructions refused, however, do not involve the fundamental questions so ably argued by counsel for both sides.
1. We will begin, then, with the inquiry whether the defendant was negligent in not having the knives boxed or otherwise guarded. It is proper to inquire into this, because we do not know which alleged act of negligence is the basis of this verdict. Perhaps the jury found against the defendant on all three. A motion to exclude the first ground of alleged negligence from the consideration of the jury might properly have been made and sustained, because there was no evidence that the mill could have been operated with guards upon it. In addition to this, the uncontradicted testimony of the defendant shows that the machine in question was the standard make of a reliable manufacturing establishment; that all pugmills are built in the same way with the knives exposed; that this one was appropriate for the work designed to be done by it; and that the same kind of machine had been in constant use in a large area of the country for many years. In the case of Fritz v.
The following is taken from the text of 26 Cyc. 1108: “While not conclusive on the question of negligence, evidence is generally admissible in an action for personal injuries to show whether or not the master’s machinery, appliances, ways and methods are such as are in ordinary and common use by others in the same business.”
In the case at bar the court, at the request of the defendant, advised the jury that, if it was the custom of brickmakers to use pugmills of the kind defendant used without any guard, l.hen no liability could be imposed on the defendant for failure to provide its mill with a guard. If the jury considered this instruction, it must have found for the defendant on that issue, because the defendant, proved that it followed the usual and ordinary custom of brickmakers. At any rate, a failure to prove what, if any, precautions could or might have been taken by the defendant to guard the knives, precluded the plaintiff from recovery on that branch of fhe ease. Plaintiff testified that he
2. The second alleged ground of negligence on the part of the defendant is that the hose “was wholly defective and unfit for use, in that the appliance for controlling the size and force of the stream emerging from the nozzle thereof .ad become so weak as to slip and allow the full force of the water to suddenly issue from said nozzle, of all of which defects the defendant well knew, or, in the exercise of ordinary care, ought to have known.” There is no testimony in the case that would warrant the conclusion that the fact that the nozzle had been forced out of the hose on a day prior-to the injury to plaintiff had anything to do with the action of the water on August 16th. Indeed, the plaintiff himself shows that that defect or weakness in the apparatus had no connection with what later occurred. That defect, if it was one, was apparently remedied. Let us bear in mind that no claim is made that the defendant negligently employed a pressure of water that an ordinary hose nozzle could not withstand.or control. The testimony shows that the hose and nozzle were new and apparently in good condition. No amount of testing would have apprised the defendant that such an accident as this was likely to happen. Indeed, as is suggested by defendant’s counsel, a perusal of the plaintiff’s narrative of how it did occur is sufficient to convince us that defendant could not possibly have apprehended the happening of an event which seems to have taken place in opposition to elementary physical laws. The rule applicable to this branch of the ease is thus stated in 20 American and English Encyclopedia of Law, 78: “As the master is only bound to use reasonable care in furnishing and maintaining in a safe condition the machinery and appliances, and does not insure the servant against injury, there can be no recovery for injuries sustained from defects in such machinery or appliances unless the master had knowledge thereof, or unless, in the exercise of rea
We conclude, therefore, that no verdict should have been based upon the allegation that defendant furnished a defective hose. In this connection, it may be remarked that the court, again at the request of the defendant, also submitted to the jury the question of negligence with regard to a defective hose, as follows: “You are instructed that no liability of the defendant can be based upon the fact of any defect of the hose or nozzle herein in question, if such you find to be the fact, unless the defendant knew of such defect, or that such defect or defects had existed for such a length of time as that the defendant should have known thereof in the exercise of reasonable care and diligence.” If the jury heeded this instruction they must
3. Was the defendant guilty of negligence in failing to explain to plaintiff the dangers to be apprehended from the machinery? The first question involved is one of pleading. It is alleged in the complaint that plaintiff was thirteen years of age, wholly unskilled in the use of machinery, and that defendant was negligent in not explaining to plaintiff the dangers to be apprehended. There is no allegation that plaintiff was not as intelligent as the average boy of his age, and we must conclude, therefore, in the light of his testimony, that he was. There is no allegation that plaintiff was inexperienced in the use of such machinery, but, without objection, he testified that he was. No complaint is made of a failure to warn the plaintiff, unless that omission be involved in the failure to explain the dangers to him. We dwell upon this question of pleading, not because the appellant, urges the same as fatal to a recovery, but because it is necessarily involved in the disposition we make of the appeal.
After carefully reading the testimony, we are convinced that it cannot be claimed that parts of the machine in question were not obviously dangerous, or that plaintiff did not know and understand wherein the danger lay. That is to say, it was apparent that, if a person’s hand came in contact with the cogs or the knives while the machine was in motion, injury would probably result. Plaintiff knew this. It was obvious. It was unnecessary to tell this to the boy or explain it to him. He knew all about it. Therefore, it was unnecessary and would have been useless to give him any information on that subject, and no negligence can be predicated upon defendant’s failure to do so. (4 Thompson’s Commentaries, sec. 4095; Ciriack v. Merchants’ Woolen Co., 146 Mass. 182, 4 Am. St. Rep. 307, 15 N. E. 579; Crowley v. Pacific Mills, 148 Mass. 228, 19 N. E. 344; Williams v. Churchill, 137 Mass. 243, 50 Am. Rep. 304; Buckley v. Gutta Percha & R. Mfg. Co., 113 N. Y. 520, 21 N. E. 717; Silvia v. Sagamore Mfg. Co., 177 Mass. 476, 59 N. E. 73; White
This brings us to a consideration of the instructions on this feature of the case. The learned trial judge undoubtedly realized that the defendant could not be held liable for failure to point out to plaintiff dangers of which he was fully aware, because the court gave to the jury the following instructions:
“No. 6. It is the duty of one who employs an inexperienced child of tender years to work about dangerous machinery to explain to him the dangers connected with such work, and the manner in which the work should be done, in order to avoid them. The failure to do this is negligence; and, if the child sustains injuries in consequence of such failure, his employer is'answerable in damages to him. This duty is one which the master is bound to perform or to have performed, and, if he sees fit to trust the performance of it to someone else, he is accountable for such person’s failure to perform it.
“No. 7. I charge you that the duty to instruct the plaintiff as to the dangers surrounding the work which he was directed to do would not be discharged by merely informing him that such work was dangerous, or that a particular part of the machinery at which he was set to work was dangerous. It was the duty of plaintiff’s employer, not simply to tell him of the dangers incident to the work, but also to explain to him wherein these dangers lay, and to show him how to do the work in such a way as to avoid thém.”
There is a line of cases that hold that it may, under certain circumstances, become the duty of employers, not only to warn child employees of danger, but, even in cases where the danger is known and fully understood, to take such precautions and give such instructions as to the manner of doing the work as will enable the child to avoid the danger if the instructions are followed. In the case of Fries v. American Lead Pencil Co.,
In Foley v. California Horseshoe Co., 115 Cal. 192, 56 Am. St. Rep. 87, 47 Pac. 44, the court said: “The question of the taking of a risk, the question of the assumption of responsibility in a given act, is determined as much upon the matter of judgment as upon the matter of knowledge. * # * Children are taught obedience. They are taught not to oppose their will and their judgment to those in authority over them; but, in addition to this, and more important than all, the judgment of the child is the last faculty developed. * * * Knowledge he may have, facts he may acquire; but the ability to apply his knowledge or reason upon his facts comes to him later in life. The very accidents of childhood come from thoughtlessness and carelessness which are but other words for absence of judgment. * * * Their conduct is to be judged in accordance with the limited knowledge, experience and judgment which they possess when called upon to act, and it must, from the very nature of the case, be a question of fact for the jury, rather than of law for the court, to say whether or not in the performance of a given task the child duly exercised such judgment, as he possessed, taking into consideration his years, his experience and his ability.”
The supreme court of Michigan in Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154, 19 N. W. 257, said: “Children,
Judge Cooley, in his work on Torts, page 553, says: “The master may be guilty of actionable negligence in exposing persons to perils in his service, which, though open to observation, they by reason of their youth or inexperience do not fully understand and appreciate, and in consequence of which they are injured.” And the court in Chambers v. Woodbury Mfg. Co., supra, also remarked: “ So it may be safely laid down as a rule that those persons who employ children about dangerous places should anticipate that they will exercise only such judgment, discretion and care as is usual among children of the same age under similar circumstances, and are bound to use due care, having regard to their age and inexperience, to protect them from the dangers' incident to the situation in which they are placed, and use reasonable precaution in the exercise of such care in their behalf. It is the duty of the employer to so instruct such employees concerning the dangers connected with their employment which from their youth and inexperience they may not appreciate or comprehend, that they may by the exercise of such care as ought reasonably to be expected from them guard and avoid injuries arising therefrom. While employers are not insurers of the lives and limbs of their employees, they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so. Of course, there can be no negligence where there is no duty that is due, for negligence is the breach of some duty that one person owes to another, and the duty varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact, if there has been no breach of duty; for, in order to maintain an action for an injury to person or property by reason of negligence or want of
In the ease of Ford v. Bodcaw Lumber Co., 73 Ark. 49, 83 S. W. 346, the court said: “They [the jury] might have reasonably inferred from this instruction that it was the duty of the appellee to instruct Dorns Ford, its employee and an inexperienced minor, only as to ‘latent dangers incident to the work’ he was employed to do; but this is not correct. It is not the duty of a master to warn an inexperienced servant of the dangers liable to be encountered by him in the performance of his duties where experience and instruction are not- necessary to enable him to do with safety the work he is employed or required to perform. If the danger of the employment is patent, and the servant, by reason of his youth and inexperience, does not know or appreciate the danger incident to the service he is employed to do, it would be the duty of the master to warn him of it, and instruct him how to avoid it, so far as it can be, before exposing him to it. In all cases where there is a duty to warn a servant, it would be a breach of such duty to expose him to such dangers without giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the dangers, and the necessity for the exercise of due care and caution, and to do the work safely, so far as it can be done, with proper care on his part. For a breach of this
In our judgment the principle of law deducible from the foregoing cases is, that- the jury should consider the age, experience or inexperience of the person injured, and all the surrounding circumstances, including the instructions given him, if any, as to what work he should perform and the manner of performing it, together with his knowledge of the dangers, patent or latent, and then determine, as a matter of fact, whether the master knew, or, in the exercise of ordinary care, should have known, that the servant required additional warnings, explanations or precautionary instructions to enable him, if he heeded the same, to avoid the dangers, and should, in the exercise of ordinary care, have instructed him accordingly. Indeed, counsel for the respondent appear to recognize this rule, for they say in their brief: “We think that the question whether or not the boy should have been warned was purely for the jury to determine.” Again, Mr. Labatt says: “Ordinarily, it is within the function of the jury to say whether a minor servant comprehended a work in such a sense as to absolve the employer from the obligation to instruct him. It is only when the proper inference from the testimony is so clear as to be free from doubt that it becomes a matter of law for the court.” (1 Labatt on Master and Servant, sec. 248.)
.■ “It has been said to be impossible to lay down any inflexible rule applicable alike to all cases where minors are employed as to what warning will be requisite. Much depends upon the nature of the machinery, the age, capacity, intelligence and experience of the employee, as well as the surrounding facts and circumstances. As in the case of adults, the notice given must be such as to enable a person of the servant’s youth and inexperience in the business to appreciate intelligently the nature of the danger attending the performance of the work. Notice of danger is not enough. The child must have sufficient instrue
In the ease of Atlanta & West Point R. R. Co. v. Smith, 94 Ga. 107, 20 S. E. 763, the court said: “The court also charged the jury as follows: £If you find from the evidence that the plaintiff was a minor when he applied for and obtained the position of train hand, and that he was inexperienced in that service, and the defendant’s agent knew it, and if you find that to couple cars was a part of his duty, and that it was attended with danger, the defendant would not have a right to put him at that work without notifying him of the danger and giving instrúctions as to how to avoid it.’ This charge was too strong against the defendant. In Davis v. Augusta Factory, 92 Ga. 712, 18 S. E. 974, the question of the duty of employers as to giving instructions to minors employed in operating dangerous machinery was to some extent involved, and was very carefully considered. After an examination of numerous authorities, the writer felt authorized to say: ‘Without doubt, in some cases even minors are not necessarily entitled to any warning at all as to the character of the machinery about which they
In the case of Manley v. Minneapolis Paint Co., 76 Minn. 169, 78 N. W. 1050, the court said: “Ordinarily, it is a question of fact for a jury whether the master is negligent in failing to instruct his employee as to the dangers incident to the employment. ’ ’
In the case of Ertz v. Pierson, 130 Mich. 160, 89 N. W. 680, it was held: “Where it appears that the plaintiff, though of tender years, knew and appreciated the danger of a machine he was operating, no recovery for personal injuries against his employer can be based upon a failure to warn him of the danger; but whether reasonable care required the owner to give him instructions as to the manner of operating a feed-cutter safely is a question of fact for a jury.”
In the ease of Chopin v. Badger Paper Co., 83 Wis. 192, 53 N. W. 452, it was held that where plaintiff, a boy eighteen years old, was injured by having his hand caught between cogwheels of defendant’s paper machine which he was oiling, it was a question for a jury to decide whether, from his previous experience with machinery, plaintiff should have comprehended the risk, so that warning and instruction by defendant was un
In the case of Hanson v. Ludlow Mfg. Co., 162 Mass. 187, 38 N. E. 363, the court said: “While he [a boy of seventeen] could not contend that he did not know that his hand would be injured by contact with the saw, nor that he was engaged in a work that he did not know was more than ordinarily dangerous, there was room for the jury to find that he did not voluntarily place his hand upon the saw, and that he was ignorant, and in the exercise of due care and forethought might not have known that the log, if it hit the saw, might carry his hand upon it. If the ease had been left to the jury, they might perhaps have well found from all the evidence that, notwithstanding his denial, he did know of the action of the saw upon objects touching it in the rear, or that, in the exercise of reasonable diligence, he should have known it. But it cannot be said that there was no other reasonable inference from the evidence, and it was a question for the jury whether the defendant ought to have warned him of his danger.” (See, also, Boyer v. Northern Pac. Coal Co., 27 Wash. 707, 168 Pac. 348; Jarvis v. Coes Wrench Co., 177 Mass. 170, 58 N. E. 587; King v. Ford River Lumber Co., 93 Mich. 172, 53 N. W. 10; Mansfield v. Eagle Box & M. Co., 136 Cal. 622, 69 Pac. 425; Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45; Allen v. Jakel, 115 Mich. 484, 73 N. W. 555.)
In the case at bar the court instructed the jury that it was the duty of the defendant “to explain to plaintiff wherein the dangers lay, and to show him how to do the work in such a way as to avoid them.” It is, of course, true that, where instructions are necessary, it is the duty of the defendant, if he knows or should have known of the necessity, to give them. But whether such duty devolved upon the defendant in this particular case was a question for the jury to decide, under proper instructions; not the court. This exact point is not made by the appellant, but it seems to arise upon its contention that there is no evidence to justify the jury in finding a verdict for the plaintiff based upon failure to explain to him the extent of the
Adverting again to the question of pleading, which it will be seen from the foregoing is necessarily involved in a consideration of the last point decided, it is again suggested, as it was in the ease of Gates v. Northern Pac. Ry. Co., 37 Mont. 103, 94 Pac. 751, that, if it is incumbent upon the plaintiff to prove, not only his age, but also the necessity for explanations and instructions as to how to avoid the danger, it would seem to follow that he must in his complaint make allegations sufficient to form a basis for such evidence.
But counsel for appellant tell us that we are not permitted to enter upon the inquiry whether the additional duty we have been discussing rested upon the defendant, for two reasons. First. Because there is no averment of negligence in failing to give such instructions as would have enabled plaintiff to avoid the injury. As heretofore indicated, we regard this point as well taken. Second. Because there is no causal connection between the failure to instruct and the injury suffered by respondent. In this connection they argue: “Neither the explanation nor the warning would have prevented the injury. It was due, under the testimony, to a wholly fortuitous circumstance — the sudden rush of water through the nozzle — by reason of which the hand of the respondent was carried against the knife. If the testimony had been that in a moment of heedlessness, thoughtlessness or forgetfulness he had voluntarily got his hand within the region traversed by the knives, a warning might have been of some avail, might have served to keep constantly in his consciousness the peril. But that is not the case. He had, apparently, been sufficiently cautious, and it was only when the force, coming too suddenly to be resisted, carried his hand into the region where it was engaged, that it was injured. It was the sudden rush of the water that was the proximate cause of his injury, not the want of any warning or explanation that the knives would crush and cut his hand if they caught it. ’ ’ But this position is not well taken, for the reason that the boy,
As the ease must be remanded for a new trial, we deem it proper to say in this connection that if the plaintiff was injured because of a failure on the part of the defendant to use reasonable care to give him such instructions as would enable him to avoid the danger surrounding him, and the defendant was chargeable 'with knowledge that such instructions were required, it would not be material to ascertain the exact reason why the plaintiff’s hand came in contact with the knife, provided he' was in the discharge of his duties at the time, and did not intentionally and knowingly place that member where he knew it would be injured.
The court gave to the jury instruction numbered 4, as follows: “In this case it is-charged that the defendant was at fault in three respects: First, in setting the plaintiff at the work at which he was engaged when injured without explaining the dangers to be apprehended; second, in allowing the revolving knives to he and remain unboxed and unguarded; and, third, in furnishing him with a defective hose. It is not necessary for the plaintiff to prove all of these charges in order to recover. If you believe from the evidence that the work which the plaintiff was directed to do was attended with danger from the knives and that he was injured by these knives, and that this danger was not explained or apparent to him, and that he did not understand or appreciate it, and that he exercised the degree of care in doing the work which the ordinary person of his years and experience and intelligence would have exercised
Again, complaint is made that the court erred in excluding from the jury the testimony of two witnesses familiar with the business of briekmaking, who were prepared to testify that in the course of their experience they never heard of an accident happening as this one is alleged to have happened. In the ease of T. & H. Pueblo B. Co. v. Klein, 5 Colo. App. 348, 38 Pac. 608, the court of appeals of Colorado said: “Where the proper construction or safe condition of machinery is in issue, evidence that it has always satisfactorily answered the purpose for which it was intended is competent as raising a strong presumption that it was properly constructed, and could be used with safety. It would also tend to repel any implication of negligence on the part of the owner in using improper machinery, because its continued operation for a long time with uniformly good results-would be evidence of its freedom from danger, as convincing as any he could have.” But in the ease we are considering the dangers connected with the machine were patent, the happening of the accident as narrated by the plaintiff was a wholly fortuitous event, the occurring of which in the exact manner told by the boy could not be anticipated. Consequently the testimony offered would not have aided the jury in arriving at a verdict. It is manifest to anyone that injury could, and probably would, result from contact with the revolving knives. What light, then, would have been shed upon the inquiry by any amoimt of testimony that no accident of the kind had ever before happened? And, so far as the nozzle was concerned, the testimony of the plaintiff is to the effect that the flow of water was accelerated without any apparent reason therefor. The testimony rejected would not have enlightened the jury, any on the
It is believed that this disposition of the basic questions involved in these appeals makes it unnecessary to canvass the minor errors complained of.
The judgment and order of the district court of Yellowstone county are reversed, and the cause remanded for a new trial.
Reversed md remanded.