114 P. 122 | Mont. | 1911
delivered the opinion of the court.
The following statement of the issues tendered by the complaint is taken from the brief of counsel for the appellants: It is therein charged that Kuphal, a minor, was employed by the defendant corporation as a carpenter apprentice; that he was without previous experience in the operation of machinery, and when he had worked for but three days the defendants carelessly and negligently directed him to operate a ripsaw, a dangerous machine; that to order him to run said saw was not only careless and negligent conduct, but was wanton and reckless; that he was not suitably warned and instructed, and the defendants carelessly, negligently, wantonly, and recklessly put him at said work without suitably warning and instructing him; that, through the said alleged negligent acts of the defendants, he, in attempting to run and operate the saw, severed the thumb and forefinger from his left hand. The answer, after admitting the employment, denied the alleged acts of negligence, and as affirmative defenses pleaded contributory negligence on the part of plaintiff and assumption of risk. The cause was tried to the district court
Plaintiff testified that on April 11, 1907, he was nearly seventeen years of age. Mr. Goslee, the foreman, employed him on that day to do carpenter work. After working at that .employment for three days, Goslee told him to go to the ripsaw and rip out some pulley slats. He had never done such work before. While standing by the ripsaw, Mr. Otto Swant, a cutter, came and asked him how he was getting on. He further testified: “Swant took one board and showed me how to rip it and then showed me another way. The way I took was what I thought was the easiest. When he showed me he told me to be sure and keep my hand on the piece that was between the saw and the gauge, and I was intent on holding that, and I never paid any attention to my left hand until- — -he put two boards through, first he showed me there, just one hand on the whole piece, by pushing the board clear through so when one strip came out with the board he held in his hand, he knocked that strip in a pile on one side. , Another way he took hold his left hand onto this strip that was coming off and pushed it through, and, as soon as it was through, with his left hand he pushed up these into the scrap pile. He told me mostly to keep my hand on this piece, for the other would hold if it is close to the saw, might be caught by that saw and thrown back. He told me, where he worked in the east, a young fellow in the east, one of these pieces was thrown back and hit him and he died. Just as I pushed the board through, I felt a kind of thud. I was intent on holding that when I started in to rip. I saw to it that my left hand was clear, and just as I got past I felt a kind of thud and let go and jumped backward. My fingers were gone, I really don’t know what happened. . The way Swant did it it looked really easy, did not require any effort on his part. He was looking at me more than the piece while he was ripping, while he was telling me. When I pushed the board through, I was surprised it went so easy. I being used to ripping with the handsaw so it took quite an effort, but this here went through without any effort on my part. I was
O.tto Swant testified: “Mr. Goslee, the boss, told me to go and show the boy how to rip that stuff. I found him over by the saw, and I ripped off three or four pieces for him and showed him how to do the work; then I let him; but he did not finish ripping the first one he attempted, for he cut his fingers. I was there three or four minutes before he was hurt while I told him, tried to make him realize everything that I could in that length of time. The very first board he put through was the one by which he got hurt. I told the boy that it was pretty dangerous work for him to tackle; told him that I would show him how, and I did. I showed him how to take hold of the board and how to push it through. I cautioned him the best I knew how, showed him how to take hold of the board, and told him about it being dangerous, that the board might fly up, and I told him to push the board beyond the saw; but when he got hurt he left the board sticking in it, in between the saw and the gauge. We were both in danger of being hit at that time, so I ran up and pushed the board over between the gauge and the saw. I showed him everything I thought I could show him without letting him do it myself. I don’t know whether he made any answers when I was instructing him or not. The machinery was making a lot of noise; I don’t remember. I would take hold of a board just this way and run it through, pass both of my hands beyond; showed ,him how to do it that way, and then' said, ‘Take your edging off and pull the board around this way.’ I told him to take a hold of the board with his hand so that the saw would pass in between his both hands, and then said: ‘You push it through until you get away on five, and then push the edging off the table, and then pull your board around the saw; never pull it up this way. If you let go of it, it will hit you. ’ When I explained to him about the dangers of the machine, I told him to be very careful of himself, to look out for himself, and not to mind the machine. I told him at that time it was pretty dangerous work
Plaintiff here closed his case in chief, and the defendants interposed a motion for a nonsuit, which was overruled. Error is assigned upon the ruling; but we shall not consider it, for the reason that the plaintiff’s case was very materially supplemented by the defendant Goslee while upon the witness-stand. He said: “I told Herbert he was not to go to the machines; he was instructed to keep away from them. I did not at that time or at any other time direct him to take lumber to the ripsaw and rip it. He had no instruction to rip it. I did not at any time before this injury instruct or direct the boy to run the ripsaw; I might have a year later. On this particular occasion I told him to take it to the maehineman, I did not tell him to take it to the ripsaw. There were men there whose business it was to use those saws. I did not instruct the boy that he was to rip the lumber. I gave him to understand he was to keep away from the machine. There was a man there to run the machine, and I supposed he would take it to him. I said to him to take it to the maehineman. I did not say to him at that time that he would have to learn to run a machine if he was going to work there. I knew that a ripsaw was a dangerous machine, inasmuch as every machine in a working institution is dangerous. I told Kuphal not to touch the ripsaw because I did not want him to go to the machine; I had other work for him to do. I foresaw that there was danger in an inexperienced boy working on this ripsaw.” It will be noted that Goslee did not contradict that part of Swant’s testimony wherein he said that Goslee directed him to show the boy how to rip the lumber. In rebuttal, plaintiff denied that Goslee ever told him to keep away from the machine or to take the work to the maehineman. At the close of the testimony, defendants moved the court for a directed verdict in their favor; but the motion was overruled.
1. It is contended that there was no negligence on the part of the appellants. We are of opinion, however, that this was a matter for the jury to decide. The ripsaw was an obviously dangerous machine. Kuphal knew this, and knew, also, that if
Ordinarily, it is within the function of the jury to say whether a minor servant comprehended a work in such a sense as to
2. Again it is said that plaintiff assumed the risk of being injured as he was. The foregoing discussion really disposes of the question, because it establishes the proposition that it was a question of fact for the jury whether the plaintiff was sufficiently instructed to enable him to know and appreciate the danger incident to operating the ripsaw. The reason for warning a
3. What has heretofore been said disposes of appellants’ contention that no causal connection was shown between the alleged
4. We think instruction No. 7, given by the court, was a correct statement of the law as applied to the facts in this case. The jury was therein advised that, if they found that plaintiff required instructions, it became the duty of the defendant to give them. This instruction, we think, fairly left the question of the necessity for instructions to the jury, although there was no serious issue on the point in the testimony.
5. Appellants requested the court to give the following instruction: “The jury are instructed that no duty rests upon the master to warn and instruct the youthful servants of the ordinary risks and dangers of the employment which the servant actually
6. The last error assigned is that the court erred in overruling a special demurrer to the complaint, interposed for the alleged reason that it cannot be determined therefrom whether plaintiff’s cause of action is “for simple negligence, or for wanton or willful negligence.” We think the demurrer was properly overruled. As a matter of fact, the complaint does not charge willful conduct. Ordinary, negligence is all that is charged. The words “reckless” and “wanton”
The judgment and order appealed from are affirmed.
Affirmed.
Rehearing denied March 24,1911.