« SebelumnyaLanjutkan »
the presumption that his employer and his employer's agents have done or will do their duty. The order having a natural tendency to throw the servant off his guard, may properly be considered to excuse him from the exercise of the same degree of care as would have
been incumbent upon him the case had not involved this factor. ID.-DUTY OF MASTER TO WARN IMMATURE SERVANT.—The rule of rea
sonable and just action on the part of the master requires him to give suitable warning and instruction to a minor employee in regard to any danger whether open or concealed, where the danger is not sufficiently obvious to the employee, in the exercise of ordinary care on his part, this care being measured by the maturity of his faculties, and the amount of his experience. This rule applies not only so far as to require the employer to give general warnings and instructions to minor employees as to the dangers attending the duties they are expected to perform, but there is a special duty resting upon the employer of giving instructions as to any new dangers whenever he orders the minor employee into a new situation, which
without such warning and instruction may be dangerous to him. ID.-SPECIAL FINDINGS NOT INCONSISTENT WITH GENERAL VERDICT
FINDING OF CONCLUSION OF LAW DISREGARDED.-It is held that the special findings are not inconsistent with the general verdict for the plaintiff, and that a finding as to a matter of law should be disregarded. To permit the jury to return conclusions of law woula defeat the manifest purpose of the statute. All presumptions are in favor of the general verdict, and it must control, if the special
is not absolutely irreconcilable therewith. INSTRUCTIONS FULL AND WITHOUT SUBSTANTIAL ERROR.-It is held that
the instructions seem to have covered every phase of the legal propositions involved in the case, and no substantial error is found therein, and they are not subject to the criticisms made thereupon by the defendant appealing.
APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. William H. Waste, Judge.
The facts are stated in the opinion of the court.
C. H. Wilson, and George E. De Golia, for Appellant.
Snook & Church, for Respondent.
BURNETT, J.-While in the employ of defendant, plaintiff was injured as a result of being caught by certain revolving machinery. His action for damages resulted in a verdict by a jury in his favor for the sum of four thousand dollars.
The appeal by defendant is from the judgment and an order denying its motion for a new trial.
It is alleged in the complaint that plaintiff was ordered and directed by one Peter MacDougald, the foreman in the machine-shop, to apply some compound on a belt which was revolving at a high rate of speed between pulleys attached to a beam at a height of about sixteen feet from the floor; that the foreman placed a ladder against said beam and directed plaintiff to mount it for the purpose of applying said compound; that the task was very dangerous since the ladder was not supplied with hooks to hold it firm and it was but little over sixteen feet long, so that when placed against said beam it stood almost perpendicular to the floor of the shop; that the foreman and defendant knew that it was not a proper or safe ladder with which to perform said task; that the plaintiff was not acquainted with and had no knowledge of the danger in mounting said ladder and neither said foreman nor said defendant warned or instructed him that said ladder was unsafe or dangerous; that plaintiff obeyed the said order of the foreman and, while applying the compound to the belt, the ladder slipped and slided sideways, without any fault of plaintiff, and thereby he was precipitated against a revolving shaft which was propelled by the said belt, and he was whirled about the shaft with great violence and serious injury resulted; that the shaft was in two parts and was coupled together by means of a collar fastened by set-screws which projected about three-fourths of an inch from the surface; that the coupling was unsafe and dangerous by reason of said projecting screws; that this was known to defendant and unknown to plaintiff and that defendant well knew that plaintiff was a minor of the age of seventeen years or thereabouts and had never been employed as a machinist or mechanic and did not knew or appreciate the danger or risk in the use of, or contact with, the machinery in said shop or in the use of or handling of the appliances or tools in said shop and well knew that plaintiff was ignorant of the hazard and danger connected with said employment.
The plaintiff testified that he had been continuously at work for defendant for seven months, that he worked in the machine-shop, that he was just a “roustabout," and that he did everything that he was asked to do, “such as running
20 Cal. App.-48
errands, carrying tools, doing oiling and other things like that.” He said that immediately prior to the accident he was doing a job on the lathe, getting the center on some truck wheels. He described the accident as follows: "The accident occurred about eleven o'clock in the morning. As I was working at the lathe the first thing I heard was Mr. MacDougald yelling at me, and he asked me if I didn't hear that belt squeaking, and as soon as he yelled at me I ran over to see what he wanted, and he says: "Get some compound and put some compound on it,' and I did that; it was laying right near me and I got the compound. Mr. MacDougald was the foreman of the shop and had been the foreman during the seven months that I had worked there immediately prior to the accident. I had been in the habit of doing as he directed in the shop. There was a little noise in the shop. I was about six feet from him when he spoke to me. I then took the compound, as he told me to do, and went up the ladder and reached through to apply the compound onto the belt, and somehow or other the ladder slipped and I was thrown over onto the coupling and my clothing was caught and I was whirled around and became unconscious. The foreman, MacDougald, placed the ladder there about ten minutes prior to the accident. I saw him place it there. The ladder was placed almost perpendicularly, the upper portion projecting slightly over the beam.” He stated further that the belt was revolving at a high rate of speed; that he had never been up on that ladder before or on any ladder to apply compound to that belt or shaft; that he had never examined the shaft or noticed how it was joined; that his usual work was confined to the floor; that the foreman did not caution him as to any danger; that his attention was never directed to the hazardous risk of any task he was performing in the shop; that when he mounted the ladder he did not know that he was in an unsafe position or that it was dangerous to be in proximity to the shaft.
Considering the distance from the floor to the belt, the rapidity with which the latter was moving, the close proximity of the shaft and the projecting screws and also the position of the ladder, it is unquestionable that he was in a perilous position when he had ascended to the belt in obedience to the command of the foreman. It is equally undeniable, and
it is not denied, that he should have been cautioned or warned of the danger by the foreman unless he appreciated the situation and needed no such admonition. But, while admitting that “it was the duty of the defendant to instruct the plaintiff, if he were ignorant as to the risks and dangers of his employ. ment," it is insisted by appellant that “the law does not require a useless act," and that by reason of "instruction, observation and prior experience” the plaintiff had knowledge of the danger and, therefore, he is deemed in law to have assumed the risk, or, in other words, he “was guilty of contributory negligence in encountering a known danger." In support of this position quotation is made from the crossexamination of plaintiff in which he described fully his work and experience in the shop and displayed such knowledge of the mechanism as we might expect from one engaged as he was and for the stated length of time. To show that he was familiar with the danger incident to the operation of the various contrivances, such questions as the following were asked, to which we also give the answers: “What oiling did you do for the defendant! A. Only the oiling that was customary for the boys around the place to do; that is all I did. Q. Well, you oiled the bearings of the machines? A. Yes, sir. Q. Now, when you left the employ of the defendant on the 7th of April, 1902, what was the cause of your leaving! You had an accident? A. Yes, sir. Q. What was that accident? A. I had got my arm hurt. Q. The same arm? A. Yes, sir. Q. How did it happen? A. I was down in the basement putting water on some bearings that were running hot, and they instructed me to stay there and watch them and put water on them all the time and they placed-Mr. Rattray placed a ladder so that I could climb up and reach, and, of course, that is the way I got hurt. Q. That ladder slipped, did it? A. Yes, sir. Q. Was it placed against a beam? A. No, sir; it was a step-ladder. Q. This accident was the result of your being caught either by the pulley or belt or shaft, the first accident? I understand you to say you don't know how it occurred? A. I was unconscious. Q. But it happened by reason of your being caught on either the shaft or pulley or belt? A. Yes, sir." Referring to the accident complained of, which occurred nearly two years after the first accident, the witness testified as follows: “Q. You
knew that you couldn't stop that pulley by your hand, by holding it? A. I did. Q. You knew also that you couldn't stop the shaft that was revolving? A. Yes, sir. Q. And you knew that if you attempted to stop it you would be hurt? A. Yes, sir. Q. And you knew if your clothing or anything got attached to the belt, it would pull your clothing, didn't you? A. Yes, sir. Q. And if you got attached to the shaft it would pull your clothing, too? A. Yes, sir. Q. And that you would get hurt? A. Yes, sir." We find similar questions and answers in reference to the pulley and set-screws. He testified also that he knew how a ladder ought to be placed and that if it was placed right it would not slide.
This examination took place more than four years after the accident, and it is quite likely that the added knowledge and wisdom of the intervening time is somewhat reflected in the answers of the witness. Regardless of this, however, it would be surprising if he had shown ignorance of these things. He did not need the painful experience of the former accident to teach him that it was dangerous to come into contact with the pulley or the belt or the screws or the shaft, or that a ladder not properly placed is likely to slip. To obtain this knowledge the ordinary boy of fourteen or fifteen or even younger would require much less time in the shop than was spent there by plaintiff. Indeed, most active boys of that age, enjoying the advantages of observation and education afforded in our cities are cognizant of these mechanical devices and of the simple elements of physics that are involved in their use and operation. We would be surprised to find upon the street a boy of fourteen who would declare that he did not know that if he mounted a long ladder that was placed almost perpendicularly and not braced he was likely to fall, or that if, by the sliding of the ladder, he was thrown upon a belt or shaft moving with great rapidity, injury would probably result to him. The Socratic method of the examination was admirable and it revealed an intelligent and candid witness, but the conclusion that his answers required the withdrawal of the question of negligence from the jury is opposed to the principle enunciated in well-considered cases and is the result of a failure to give due prominence to certain significant features of the occasion. These circumstances, briefly stated, are the complexity of the situation, the fact that