69 P. 425 | Cal. | 1902
This action was brought by an employee of defendant for personal injuries received in defendant's box-factory while plaintiff was operating a rip-saw. At the conclusion of plaintiff's evidence the court, on motion of defendant, nonsuited plaintiff for want of evidence to establish a case for the jury; and this appeal is from the judgment following the nonsuit and from an order denying plaintiff a new trial.
The contention of appellant is, that the court erred in deciding that, as a matter of law, there was no evidence to sustain plaintiff's case and in taking the case away from the jury. We think this contention is well founded.
The plaintiff was between eighteen and nineteen years of age, and, though he had worked in the said box-factory some fifteen months before he was hurt, he had had very little experience in running the rip-saw. As he testifies, that was not his job, and he had run it prior to his injury only on four or five days, ten or fifteen minutes on each day. When the defendant was short of help and in a rush, its superintendent made the plaintiff run the saw on which he was hurt. It affirmatively appears from the evidence that the superintendent gave the plaintiff no instructions how to operate the saw on which he was hurt, and no warning as to any danger in running it, and the plaintiff received no instruction or warning concerning it, except such as he derived from observing others operating the saw at brief intervals. As he testifies: *625
"He did n't warn me of any danger. He did n't tell me where any danger was in the saw," and "I did n't see him cut up any on it; never showed me a thing on the saw at all. The rip-saw I operated and which Mr. Hiscock showed me how to cut was different from the one I was finally hurt on." At the instant that plaintiff was hurt he was engaged at a circular rip-saw, about eleven inches in diameter, in cutting boards seven eighths of an inch thick, ten or eleven inches wide, and ten or eleven inches long, into strips three eighths of an inch thick. This he was doing with his hand, pushing the board with his hand on a table against and under the saw, which turned with a downward whirl towards him. The expert evidence, which was uncontradicted, shows that the usual and safer way to do this dangerous work of sawing such short stuff was by means of a stick in the hand, about fourteen to sixteen inches long, with a notch, or shoulder, cut in it, so that it would not slip on the board, the narrow three-eighths strip being pushed past the saw and thrown out of the way with this stick, thus keeping the hand a safer distance from the saw. The experts tell of another way that short boards were handled with comparative safety, by sliding or pushing them against the saw until they were cut half way through, and then pulling them back, turning them round, and cutting through the other half from the opposite end. Common prudence demanded that this inexperienced young man, commanded to work with a dangerous machine, with which he was not at all familiar, should have been fully and specifically instructed in the safest methods of doing this work. To put him to work without these instructions was negligence, and a jury might well have concluded from the facts in evidence that plaintiff's crippled hand was the proximate result of such negligence. It is at least safe to say that the trial court was not warranted in declaring, as a matter of law, that there was no question of fact arising on the evidence presented that came within the province of a jury to determine. "We think it is now clearly settled that if a master employs a servant to work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a *626
dangerous character, or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them, and do his work safely with proper care on his part." The foregoing from a Wisconsin case is quoted with approval in the three well-considered California cases following: Ingerman v.Moore,
We advise that the judgment and order appealed from be reversed.
Smith, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied.
