Herold v. Pfister

92 Wis. 417 | Wis. | 1896

Pinney, J.

"We think it is entirely plain that the court properly directed a verdict for the defendant. The plaintiff appears to have been a person of reasonable intelligence and • judgment for one of her years, and she had had experience in the kind of work in which she was employed, and had worked in it, upon and over the' floor which it was alleged was of improper and unsafe construction, for five or six months. Beyond question, she was entirely familiar with the situation and the alleged element of danger to hér safety while thus engaged in her service. She had arrived at years of discretion and was nearly or quite full grown. It does not appear that she had ever made any complaint of the alleged defect, although it was plainly visible and well known to her. The evidence shows that she was, beyond question, of sufficient intelligence and judgment to appreciate and understand whatever of danger there was to which she was exposed in passing over the covering of the pipes, as much so as an adult. There was nothing obscure or complex in the situation, and nothing requiring special intelligence or experience, as in the case of Chopin v. Badger Paper Co. 83 Wis. 192, in respect to the operation, speed, and consequent peril from machinery in motion. As the situation ivas entirely plain to the humblest understanding, and there was nothing in the case tending to show that she could not and did not fully understand and appreciate the risk or danger of passing and repassing over the covered pipes while about her work, she must be held to have assumed the risk of continuing in her employment, under the circumstances disclosed. It does not appear that anything occurred at the time to disturb or attract her attention. No one was then urging her to make haste in'her work. The fact that she had been directed to hurry up her work, two hours before, was not likely to affect her powers of observation and judgment at the time the accident occurred.

The evidence was undisputed, and the inferences from it were plain and captain; and, although the plaintiff was a minoi', the case presented no question for the consideration of the jury, but one of law for the court. In the case of Luebke v. Berlin Machine Works, 88 Wis. 442, the facts and proper inferences from them were in doubt, and what was there said was in discussing or declaring the rule by which the jury was to be guided, in view of the fact that the case was a proper one for their consideration, and that, therefore, the motion for a nonsuit, and the defendant’s request that the jury should be directed to find for the defendant, were ■properly denied. The opinion in Luebke v. Berlin Machine Works, supra, taken in connection with the case before the court, does not hold that, in an action brought by a minor for personal injury, the question of his or her contributory negligence or assumption of risk, though it plainly appears from the uncontradicted evidence, must be submitted to the jury for its decision. The rule is clearly stated in Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113.

By the Court.— The order appealed from is reversed, and the cause is remanded for a new trial.