91 Wis. 637 | Wis. | 1895
The broad claim is made, that the evidence in the case shows, as matter of law, that the plaintiff knew, or ought to have known and appreciated, the risk, and hence that the motion to direct a verdict for the defendant should have been granted. We are unable to agree with this contention. While it is a fact that the wheel was in plain sight, and also that any person must have known that if his arm got into it he would be seriously injured, still we cannot say, as matter of law, that a boy of the plaintiff’s age must be held to have known and appreciated the danger attending his work about the box or bearing. Chopin v. Badger P. Co. 83 Wis. 192. It is true that the evidence showed the plaintiff to have been used to sawmills and unusually bright and intelligent about machinery, but it also showed that his work was performed at night; that his ordinary task was to oil the machinery when not in motion; that the box about which he was engaged was almost out of his reach, so that he had to stand on his tiptoes and steady himself on the bridge tree with one hand, while he felt of the box with the other; that the box was in the shadow; and that his duties Avere such as to necessarily direct his attention to the condition of the box and not to the proximity of the wheel. Tinder all these circumstances, we decline to say, as matter of law, that a boy sixteen years of age must be held to have assumed the risk.
It is also claimed that the circuit court erred in defining ordinary care. The court charged the jury that ordinary care; in this case, is “ such care as boys of his age, intelligence, and experience usually use and exercise under similar circumstances.” This is very clearly correct. The standard or test of ordinary care which is applied to adults is not the standard to be applied to minors. Hemmingway v. C., M. & St. P. R. Co. 72 Wis. 42; Whalen v. C. & N. W. R. Co. 75 Wis. 654. The case of Duthie v. Washburn, 87 Wis. 233, was the case of an adult, and what is there said as to ordinary care must be construed in the light of that fact.
There are, however, errors in the case which necessitate reversal.
2. The court charged the jury that the plaintiff might recover for the pain and suffering which he was “ likely to endure in the future,” resulting from the injury. This was error. Hardy v. Milwaukee St. R. Co. 89 Wis. 183.
By the Court.— Judgment reversed, and action remanded for a new trial.