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plaintiff was a minor and presumably without the judgment of an adult, that he was ordered by his superior to do the work which was outside of and more hazardous than his usual employment, that he was expected to and did obey promptly and that he had a right to assume that the ladder was placed with due regard for his safety. In view of these incidents, we think it cannot be said as a matter of law that no other rational inference can be drawn than that plaintiff was guilty of contributory negligence.
In determining the question what is ordinary care on the part of an individual, of course, "all the circumstances of his position should be regarded, including, in cases like the present, the servant's orders, the demands of his duty, the apparent risk to be met, and the purpose of his action, no less than his physical surroundings." And, as further stated by Labatt, section 4400: “A second principle which is especially important in cases where the servant was injured as a result of his compliance with a direct order, and which naturally suggests itself as a material element under such circumstances, is that a servant is not necessarily negligent where he acts upon the presumption that his employer, and his employer's agents have done, are doing and will do their duty. ... The juridical theory is that 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 on him if the case had not involved this factor."
All the authorities, also, emphasize the importance of the distinction between adults and those of immature judgment. Referring to minors, Thompson, in his work on Negligence (sec. 4093), says: “The master is here, as in every other case, bound to act reasonably and justly; and this rule requires him to give suitable warning and instructions to a minor employee in regard to any danger, whether open or concealed, where the danger is not sufficiently obvious to the intelligence or experience of 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." And, in section 4094: “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 also 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."
It is, no doubt, true, as the learned author says, that “We meet with confusing and contradictory ideas growing out of the opposing tendencies of the minds of judges," and he cites a large number of cases from various jurisdictions illustrating this difference, but the apparent want of harmony arises rather from an application of the law to the peculiar facts than from disagreement as to the law itself. All the courts are in concord as to the doctrine that where reasonable men may differ as to the proper inference to be drawn from the facts a case is presented for the determination of the jury.
While the circumstances, of course, are variant, the action of the lower court in holding that the question of negligence was one for just and candid disputation is, we think, within the rationale of the decisions of the appellate courts of this state.
In Ingerman v. Moore, 90 Cal. 410, [25 Am. St. Rep. 138, 27 Pac. 306), it was held that “Where it appears that an employee in a sawmill was seriously injured while running a scantling machine and saw, in attempting to remove slivers from under the saw, by reason of his sleeve catching on a concealed set-screw fixed upon and projecting from a shaft below the saw, the fact that he had been employed in the mill for nearly two years, and had been working as assistant on the scantling machine, in putting the lumber in place to be cut by the saw, for about nine months, and had, during that time, in the absence of the foreman, run the machine for eighteen days, does not warrant the appellate court in saying, as matter of law, that he was experienced in the work he was doing, and had knowledge of the set-screw, and of the danger of placing his hand where he did while the machine was running, but his experience, and knowledge of the machine, is a question of fact for the jury." The concealed set-screw was the controlling factor in that case, but the rule was approved as enunciated in Coombs v. New Bedford Cordage Co., 102 Mass. 585, (3 Am. Rep. 506], as follows: “Whether is was possible for the plaintiff to have met with
the accident from inadvertence or want of acquaintance with the danger of his position without being chargeable with a want of reasonable care, we think is a question to be submitted to the jury. The facts that he saw, or might have seen, the machinery in motion, and might have known that it was dangerous to expose himself to be caught in it, are considerations which should be regarded on one side. On the other, some allowance should be made for his youth, his inexperience in the business, and for the reliance which he might have placed upon the direction of his employers. It has been held in other cases that previous knowledge of a danger is not conclusive evidence of negligence in failing to avoid it."
In Mansfield v. Eagle Box etc. Co., 136 Cal. 622, [69 Pac. 425), the plaintiff was injured while operating a rip-saw in a box factory. He was between eighteen and nineteen years of age and had worked in the factory some fifteen months before he was hurt, although having had little experience in running the rip-saw—that was not his job, but when short of help the superintendent made the plaintiff run the saw on which he was hurt. He was engaged in cutting boards when the accident occurred. With his hand he was pushing a board on a table against and under the saw, which turned with a downward whirl toward him, when it seems the board slipped and his hand was caught by the saw. The court said: “Common prudence demanded that this inexperienced young man, commanded to work with a dangerous machine, with which he was not at all familiar, should have been fully and specifically instructed in the safest methods of doing the work. To put him to work without these instructions was negligence, and a jury might well have concluded from the facts in evidence that plaintiff's crippled hand was the proximate result of such negligence." No doubt, if categorically questioned, the plaintiff in that case would have answered that he knew a rip-saw was a dangerous implement and that if his hand came into contact with it while in motion he would get hurt, and, furthermore, that a board might slip or get caught in such a way as to throw his hand against the saw, as any intelligent youth of his age and experience would have some knowledge of these things, but the court properly held, under the circumstances, that it was proper for the jury to determine whether, on account of its failure to caution and
instruct him as to the best method of operating the saw, defendant was legally liable for plaintiff's injuries.
In Clark v. Tulare Lake Dredging Co., 14 Cal. App. 414, [112 Pac. 564], it was held by this court, in a case wherein a bright boy of sixteen and a half years lost his life, that "the burden was upon the defendant to show that those in authority over the dredger not only warned the boy of the danger attendant upon the discharge of the duties of a “deck hand' having charge of the principal machinery of the dredger, but also to show that if such warning was given it was so given that the deceased fully appreciated and realized the danger by which he was surrounded." Therein many cases are cited, which may be consulted with profit, illustrating the principle so aptly stated in Foley v. California Horseshoe Co., 115 Cal. 184, (56 Am. St. Rep. 87, 47 Pac. 42], that “The conduct of minors 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 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."
We deem it unnecessary to notice other citations of respondent, wherein, with no stronger showing than this, it was held that a case was presented for the jury. Indeed, the number of circumstances here that might properly be considered factors in the perilous situation, emphasized with peculiar force the imperative duty of defendant to warn and instruct plaintiff. Their relative importance we may not be able to determine, we cannot say how much each contributed to the injury, but it is reasonably certain that the fact that plaintiff, a minor and somewhat crippled from a prior accident, in an emergency, was directed in a peremptory manner by his foreman to do a special perilous task outside of his orditary employment in a place rendered dangerous not only by its location and the position of the ladder but by the rapid movement of the machinery and the presence of the projecting set-screws, presents a case quite unusual in its cumulative effect in favor of respondent's position.
Many special issues were submitted to the jury and the answers to certain ones furnish to appellant the ground of an objection that some are indefinite and inconclusive and that others are entirely inconsistent with the general verdict. In their construction the rule is undoubtedly as stated by Clementson in his work on Special Verdicts, pages 131 and 139: "Special findings should, if possible, be so construed as to harmonize them with each other and with the general verdict,” and special findings will not control unless they exclude every theory which will sustain the verdict and “are inconsistent only when, as a matter of law, they will authorize a judgment different from that which the verdict will permit."
Respondent, in his brief, sets out all the special verdicts with categorical answers, from which it appears, as claimed by him, that the jury positively answered questions which covered all the material issues of the case, viz. : “That plaintiff was inexperienced; that he did not appreciate the dangers of his task; that his task was dangerous; that defendant did not instruct him as to the danger; that defendant failed to use ordinary care to instruct him as to such danger; that plaintiff's injury was caused by the negligence of defendant; that defendant knew that plaintiff was inexperienced; that plaintiff was injured by the accident; that such injuries were permanent; and that plaintiff did not have sufficient intelligence and understanding, in view of all the facts of the case, to know the danger of his task.” Other questions, covering a part of the same ground, were answered: “We believe so, “Not according to the evidence," "We think not," "The preponderance of the evidence answers affirmatively," and "No, we think not.” The duplication arose from the fact that the court submitted questions proposed by both plaintiff and defendant. The court might better have rejected some of the questions, but it is perfectly apparent that thus far no inconsistency is shown, nor anything of which appellant can complain. In other words, the jury having answered positively that the defendant was negligent, the finding would not be affected nor would either party be prejudiced by the answer to another question of the same import that “The preponder. ance of the evidence answers affirmatively” or “We believe so.” The same thing is manifestly true as to the questions