65 N.J.L. 244 | N.J. | 1900
The opinion of the court was delivered by
When a motion to nonsuit is made, the testimony of the plaintiff’s witnesses becomes, for the purposes of the motion, a state of the case in which every pertinent fact, and every permissible inference is resolved in the way most favorable to the plaintiff’s recovery of a verdict. The motion to nonsuit is, in effect,' a demurrer to the evidence for the .plaintiff. It admits all of the facts that a jury might legitimately find to be proved, and charges that as a matter of law the proof of those facts would not entitle the plaintiff to a verdict. In the present case the cardinal facts so found, in addition to the description of the machine and of the plaintiff’s injury, are that the plaintiff was told by the defendant to clean the cutting-board beneath the knife when work was stopped, and that while doing as he was bid, the knife came down upon his hand and injured him.
The defendant’s proposition is that from these facts, its negligence in respect to any duty that it owed to the plaintiff is not a permissible inference.
The law upon this subject is not open to any manner of
It is to be observed in the application of this rulé that the-primary cpiestion is not as to the manner in which the risk was pointed out to the minor, or whether it was pointed out at all, but whether the danger was obvious to him. That is to say, the duty to instruct is a secondary one and does not' arise when the danger is obvious. ' AVhether the danger be-obvious is, when entirely clear, a court question, bearing in mind that it is the danger of doing that which the minor is set-to do, or permitted by the master to do, that must be obvious.. If that which he is set to do be not dangerous in itself, but be fraught with dangers that are more or less'matters of inference, or if it be dangerous or not, according to- circumstances, the question whether such intercurrent dangers were* obvious to one of the plaintiffs age and capacity is generally for the jury. The eases cited are illustrations of this distinction. In Smith v. Irwin the work at which the plaintiff was set would not obviously expose him to danger from the mere fact that the buzz saw was in operation, hence the question of its obviousness properly went to the jury. In Christoph v. Addicks, the service was free from danger until the: plaintiff in imitation of older workmen used his foot to press: down the clay, an operation that would be deemed dangerous-by one of adult intelligence, but would not necessarily be so-to the infant mind. , In Deffur v. Brandes, 44 Atl. Hep. 1100, it was a question for the jury whether the minor plaintiff' should not have been told that a steel spring, when released' from inside a bobbin, might fly into his face, and whether the manner of safely releasing it should not have been explained to him.
The case before us is entirely barren of any proofs that tend to connect the plaintiff’s injury with the neglect of the defendant to perform any duty growing out of the relation of master and servant.
This is the proposition upon which the defendant rested his motion to nonsuit. The ruling embodied in the bill of exceptions is correct. The judgment of the Supreme Court is •affirmed.
For reversal—None.