93 P. 450 | Or. | 1908
delivered the opinion tíf the court.
The negligence of the defendant, alleged and relied upon by the plaintiff as the basis of recovery, is that the defendant carelessly and negligently failed and neglected to caution or warn plaintiff of the dangerous character of the said machine, and by reason of plaintiff’s immaturity and inexperience he did not comprehend or appreciate the danger, and this is denied by the answer. And it further sets up the affirmative defense of contributory negligence that plaintiff knew of the danger, and that
“The master owes no such legal duty to the servant in respect to dangers which are open, visible, and obvious ¿0 the comprehension of the servant, considering his. years, experience, and understanding. In the case of an adult servant of sound mind, the rule is understood to be that, where the dangers of the employment are visible, so that any man of ordinary intelligence, though not an expert, could not fail to see and comprehend them, an employer is under no legal obligation to warn the servant of their existence; but in the cases of infants, as we shall hereafter see, the rule is to be applied with reference to their inexperience and want of comprehension.”
“It has been determined by this court that only such care and caution to avoid the dangers of accident can be expected or required of a person of immature age as is common to other persons of his years of prudence, forethought, and discretion. * * This must necessarily be so, because infancy and youth spring into manhood and maturity by degrees only, and responsibility develops accordingly.”
In MacDonald v. O’Reilly, 45 Or. 589, 599 (78 Pac. 573), a case of an infant of tender years, and the liability not arising between master and servant. Mr. Justice Bean says:
“There has been a time in the life of every person of mature judgment, as all agree, when he was incapable of exercising the care and judgment necessary to avoid or avert danger, and was non sui juris. There is a time also when he is in law an adult, and responsible as such. Between these two periods is a transition stage, during which his capacity is a matter of fact for the jury.”
In Westman v. Wind R. Lum. Co. 50 Or. 137 (91 Pac. 478, 480), Mr. Chief Justice Bean says:
“It was defendant’s duty, therefore, to point out or give him notice of the danger incident to his employment and the risks attending the same, * * unless they were so open and apparent that one of his age, experience, and capacity, in the exercise oF ordinary care and prudence, should know and appreciate them to the same extent as an adult; and that was a question for the jury.”
These authorities lead to the inevitable conclusion that, if the minor, by reason of immature age, inexperience, or want of comprehension, does not appreciate
“Q. Didn’t you know if you put your hand under there and it started it would cut your hand off?
A. Yes; if it would start up, I knew it would get my hand.
Q. Well, why did you do it?
*28 A. Well, I didn’t suppose it would start up so quick. I didn’t think about that. I was thinking about getting the stuff out o there the shortest time. I was thinking of getting the stuff out of the machine so I could get that off of the floor. I wasn’t thinking much about the knives. I was thinking of just keeping up with the work.”
Where plaintiff’s work required haste, and his whole energy and attention was absorbed in performing it, he is not conclusively presumed to have constantly in mind a particular danger incident to his work. The care and attention required of an employee while working about dangerous machinery may depend upon the facts of the particular case — whether they were such as to excuse him from that degree of care and thoughtfulness, which a prudent man would ordinarily exercise. Whether in such a case the injured party was guilty of contributory negligence is a question of fact for the jury. In Viohl v. N. P. Lum. Co. 46 Or. 297, 301 (80 Pac. 112), Mr. Justice Bean says:
“Indeed, in an action against a master to recover damages for an injury to a servant, due to the negligence of the former, the question of contributory negligence on the part of the injured party is ordinarily a question of fact in all cases. * * It is not declared as a matter of law in any case, unless the danger was not only avoidable if the servant had acted prudently, but also such as no prudent man would have incurred. Mere knowledge of the danger is not conclusive of negligence in failing to avoid it. A servant’s knowledge and his voluntary exposure to the danger are probative facts from which the ultimate fact of negligence must be determined, but they are not conclusive.”
See, also, Nosler v. Coos B. R. Co. 39 Or. 331 (64 Pac. 644); Roth v. N. P. Lum. Co. 18 Or. 205 (22 Pac. 842); Johnston v. O. S. L. Ry. Co. 23 Or. 94 (31 Pac. 283). In the latter case the danger was open and visible, and the question of contributory negligence was held to be for the jury, and a nonsuit was set aside.
“The master is here, as in every other case, bound to act reasonably and justly; and this rule requires him to give suitable warning and instructions to a minor employee in regard to any danger, whether open or concealed, where the danger is not sufficiently obvious to the intelligence or experience of the employee in the exercise of ordinary care on his part; this care being measured by the maturity of his faculties and the amount of his experience.”
And he further says that the warning should be graduated to the youth, ignorance, and inexperience of a minor. In Coombs v. New Bedford Cordage Co. 102 Mass. 572 (3 Am. Rep. 506), in the case of a boy, 14 years of age, the dangers of the machinery were open and apparent, and it was held that whether the boy appreciated the danger, and whether the defendant had given him sufficient or reasonable notice of it, were questions for the jury. And on the second appeal (at page 596 of 102 Mass.: 3 Am. Rep. 506) the court held that the notice of the nature of the risk to be given by an employer to a minor must be such as will enable a person of his youth and inexperience in business intelli
“In determining the question of the sufficiency of the notice it is proper and necessary to take into consideration, not only the plaintiff’s youth and inexperience, but also the nature of the service, and the degree to which his attention while at work would need to be devoted to its performance.”
As we have seen that the extent of - his capacity is a matter for the jury, it is also for them to determine from the whole case whether the notice given was sufficient or reasonable to enable plaintiff to appreciate the danger.
Therefore the motion for the nonsuit was properly denied, and the judgment is affirmed. Affirmed.