Covelli v. Cooper Underwear Co. , 151 Wis. 130 ( 1912 )

SiebboKER, J.

The jury found that the defendant’s foreman who' set plaintiff at work at the mixing picker did not warn the plaintiff of the dangers incident to his duty of removing the clogging material from the spout while the machine was in motion, and that such failure to warn plaintiff was the proximate cause of plaintiff’s injury. The inquiry, “Ought the plaintiff, considering his age, intelligence, and experience, in the exercise of ordinary care, to have understood and appreciated . . . dangers attending placing his hand and arm too far in the spout in order to remove clogging material while the machine was running?” the jury answered in the negative. It is well known that a master is not required to give warning of visible and obvious dangers to a servant who possesses the intelligence, understanding, and experience to comprehend and appreciate them. The rule of liability was aptly stated in Jones v. Florence M. Co. 66 Wis. 268, 28 N. W. 207:

“We think it is now clearly settled that if a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do the work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first give him such instructions or cautions as will ■enable him to comprehend them, and do his work safely, with proper care on his part.”

The evidence tends to show that the plaintiff was ignorant of the construction of the mixing picker, that he had very little, if any, knowledge of machinery and had had practically no experience in operating it, and that his experience in a factory was limited to the five weeks he had worked for the defendant before the accident. He testified that the defendant’s foreman set him to operate this mixing picker without showing or explaining to him the parts, how the machine operated on the material, or the relation of the Doffer fan to the opening in the spout from which he was directed to clear the clogging material while the machine was in operation. A study of the facts in evidence has convinced us that it was a question for the jury as to whether or not the danger to the plaintiff in the performance of this duty was so obvious, and his knowledge, information, and experience in respect thereto so limited, as to render it necessary that the foreman who directed him to perform this service should have instructed him of such dangers before setting him at this work, and that the court properly submitted this question to the jury.

The contention is also made that the special verdict is insufficient to sustain the judgment in favor of the plaintiff in that there is no finding that the defendant was negligent in not warning the plaintiff of the dangers complained of and which caused the injury. The master’s liability to his servant for failure to warn as alleged in this case rests upon the facts:

“(1) That the master was chargeable with knowledge, actual or constructive, of the existence of the risk. (2) That the servant himself did not appreciate the risk, and that his nonappreciation thereof was excusable. (3) That the master knew, or ought to have known, that the plaintiff was thus excusably ignorant of the risk, and was, by reason of such ignorance, exposed to an abnormal hazard, over and above those wbicb be was presumed to contémplate as incidents of tbe employment.” 1 Labatt, Mast. & Serv. § 235.

Tbe last proposition includes tbe principle that a master cannot be beld liable in sucb a case unless be is charged witb ■actual or constructive knowledge that tbe servant was excusably ignorant of tbe risk.

“Before an employer can be beld liable for a failure to warn, there must be something to suggest to him that a warning is necessary. Unless this necessity was or ought to have been known to him, be is considered to be justified in acting upon tbe assumption that tbe servant understood tbe dangers to wbicb be was exposed, and would take appropriate precautions to safeguard himself.” 1 Labatt, Mast. & Serv. § 241.

“Failure to instruct or warn an employee as to risks and hazards attending tbe employment is not negligence, unless tbe employer knew, or ought to have known, that sucb warning and instruction was necessary.” Sladky v. Marinette L. co. 107 Wis. 250, 83 N. W. 514, approved in Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289.

Tbe appellant brought this question to tbe attention of tbe court by a request that tbe question be incorporated in tbe special verdict, and by tbe following requested instruction:

“You are instructed that tbe defendant was not guilty of any want of ordinary care in failing to inform tbe plaintiff that it was dangerous to reach in too far into tbe spout in order to remove clogged material, unless defendant knew or ought to have known that sucb warning and instruction was necessary.”

We are not clear from tbe state of tbe record whether or not tbe court, upon rejection of these requests, beld that tbe evidence, as matter of law, showed that 'the defendant’s foreman bad actual or constructive knowledge that tbe plaintiff was excusably ignorant of tbe dangers complained of and incident to bis employment. Tbe state of tbe evidence is not sufficiently clear to show, as matter of law, that tbe defendant was negligent in this respect. The evidence is meager on the subject. We find no direct evidence showing that anything was said on the subject by the parties at the time plaintiff was employed or afterwards. Whether or not the defendant failed to exercise ordinary care at the time of engaging plaintiff, or before setting him to operate the mixing picker, to ascertain plaintiff’s experience and knowledge, or whether or not, under the facts and circumstances, defendant ought to have known that he was excusably ignorant of the risk, were questions, under the evidence in the case, which should have been submitted for determination to the jury. We are of opinion that the court erred in not submitting this issue to the jury for their decision, and that the verdict rendered is not sufficient in law to sustain a judgment 'against the defendant. This condition of the record, and the rights of the parties, call for a reversal of the judgment and a retrial of the case.

By the Oourt. — The judgment appealed from is reversed, and the cause remanded to the circuit court for Kenosha county for a new trial.