27 Wash. 707 | Wash. | 1902
The opinion of the court was delivered by
Michael Boyer, a minor, brought this action, by his guardian, against the Horthern Pacific Coal Company, to recover for injuries received while in the employ of the defendant, engaged in the operation of its coal: mines at Roslyn, Yakima county. The complaint alleges that, through the negligence of the defendant in not providing suitable ears and brakes therefor and tracks and other appliances, and in not informing plaintiff of the dangers of his employment, the plaintiff, while engaged, in helping to haul coal out of defendant’s mine, was injured between the bumpers on two coal cars. The defendant, after denying the allegations of negligence, pleaded contributory negligence on the part of plaintiff. When the cause was on trial, after plaintiff had rested his case, defendant challenged the sufficiency of the evidence to show any negligence on the part of the defendant, and moved the court to grant a nonsuit. This motion was sustained, and the action was dismissed. Plaintiff appeals.
It appears from plaintiff’s evidence that he was employed by defendant on April 18, 1898. He was then thirteen
“Where there is a question whether the child is of sufficient age and discretion to be capable of some care for his own safety, the question of his capacity and its degree is for the jury. . . . And when a child has reached the age of discretion, and is considered sui juris, as a matter of law, the degree of care and caution required of him will be no higher than such as is usually exercised by persons of similar age, judgment, and experience; and whether that degree of care and caution has been exercised by the child in a given case is usually, if not always, a question of fact for the jury. 4 Am. & Eng. Enc. Law, 46, and cases cited.”
In the case of Luebke v. Berlin Machine Works, 88 Wis. 442 (60 N. W. 711, 43 Ah. St. Rep. 913), the court said:
“The same rule applies to the case of an employee who is a minor, where the defect or danger is open and obvious, in so far as he is of such age, intelligence, discretion, and judgment as to enable him to comprehend the situation and appreciate the danger incident to the work or employment. Subject to this qualification, knowledge of the defect or danger is to be imputed to him in like manner as to an adult. It is, however, a question for the jury to determine upon the evidence whether a minor servant was of sufficient age, intelligence, discretion, and judgment to bring him within the operation of the rule applicable to adult servents,”
“The court rightly held that the question whether the plaintiff, from his previous experience with machinery, should have comprehended the risk, so that warning or instruction by the defendant was unnecessary, was a question for the jury.”
See, also, Northern Pacific Coal Co. v. Richmond, 7 C. C. A. 485 (58 Fed. 756) ; Tagg v. McGeorge, 155 Pa. 368 (26 Atl. 671, 35 Am. St. Rep. 889) ; Steiler v. Hart, 65 Mich. 644 (32 N. W. 875); Mitchell v. Tacoma Ry. & Motor Co., 9 Wash. 120 (37 Pac. 341) ; Railroad Co. v. Port, 17 Wall. 555 ; Wheeler v. Wason Mfg. Co., 135 Mass. 294.
The controlling inquiry must be, in cases of this character, whether or not the minor appreciated the danger to which he was subjected. There can be no fixed period when a minor may be held, as a matter of law, h> appreciate danger which may surround him. His appreciation of danger will depend more upon his intelligence and experience than upon his age. The boy of fourteen, of average intelligence, with no experience with dangerous appliances, may know less of danger than one of less intelligence who has had experience. So that the question of age, when compared with natural intelligence and past experience, may have very little influence in determining the ability of a minor to appreciate danger. Natural intelligence and experience must always depend upon the training and surroundings of the boy. These are questions of fact, for the jury to pass upon as other facts in the case. This plaintiff may be an exceptionally bright and reckless boy. He may have fully appreciated his danger without any warning from the defendant. On the other hand, he may be dull, and have had no appreciation of his danger, in
It was error of the court to grant a non-suit. The cause will he reversed, with instructions to grant a new trial.
Reavis, C. J., and Anders, White, Hadley, Fullerton and Dunbar, JJ., concur.