after stating the case as above, delivered the opinion of the court.
Two preliminary questions are presented by the assignment of errors, which are not unimportant to be settled. One Rothenberger was being examined as a witness by counsel for defendant in error. After merely testifying that he was a general mechanic, employed by the plaintiff in error as its master mechanic to look after the machinery and keep it in running order, counsel for defendant in error asked the following question: “Well, you say you are a machinist; in your opinion, was it machinery that needed to be guarded?” To this question counsel for plaintiff in error objected, on the ground that it was immaterial and called for the conclusion of the witness. The court overruled the objection, and the witness answered, “Yes, sir.” This, in our opinion, was error. One of the crucial questions on trial before the jury was whether or not reasonable care on the part of the employer required that the part of the machinery where the endless chains and spreaders passed the place where the defendant in error was at work should have been protected by safeguards to prevent the accident in question. Necessarily, this was a question of fact to be developed before the jury from all the attendant circumstances, which would address themselves to the common sense and understanding of 12 men of average intelligence. As such, it was clearly susceptible of proof of the conditions comprehensible to the common understanding of the triers of the fact. It was not shown that the witness had any special experience founded on observation as to the necessity of guarding such place. He only knew, so far as the evidence developed, the mechanical structure of the machinery, and whether it was in good running order. He was not asked as to whether such machinery was dangerous in its operation, and it was no more proper to ask this witness for an expression of his opinion as to whether the place should have been guarded than it would have been to ask him
The defendant in error was permitted, over the objection of plaintiff in error, to testify that she was dependent upon herself for support. This was also error. Whether she. was rich or poor, with or without an adequate income outside of her manual labor, in no manner affected her right to recover compensatory damages resulting directly from her injuries. Such compensation would include her physical and accompanying mental suffering, if any, loss of time, the value thereof based on her earning capacity at the time of receiving the injury, and any prospective loss based upon the probable continuation or permanency of such disability. Ala. G. S. R. R. Co. v. Carroll, 84 Fed. 772, 780, 781, 28 C. C. A. 207; Pennsylvania Co. v. Roy, 102 U. S. 451-460, 26 L. Ed. 141. Any other rule would create a shifting scale for measuring compensation for such injury, making it dependent upon the pecuniary condition of the sufferer.
Error presumptively works a prejudice to the party against whom it was committed, and this presumption is only overcome when it appears beyond a doubt that the error challenged did not prejudice and could not have prejudiced the complaining party. Deery v. Cray, 5 Wall. 795, 807, 808, 18 L. Ed. 653; Smiths v. Shoemaker, 17 Wall. 630, 639, 21 L. Ed. 717; Moores v. Bank, 104 U. S. 625-630, 26 L. Ed. 870; Gilmer v. Higley, 110 U. S. 47-50, 3 Sup. Ct. 471, 28 L. Ed. 62; Railroad Co. v. O’Brien, 119 U. S. 99-103, 7 Sup. Ct. 172, 30 L. Ed. 299; Mexia v. Oliver, 148 U. S. 664-673, 13 Sup. Ct. 754, 37 L. Ed. 602; Railroad Co. v. O’Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L. Ed. 1006; Peck v. Heurich, 167 U. S. 624, 629, 17 Sup. Ct. 927, 24 L. Ed. 302; Railroad Co. v. McClurg, 59 Fed. 860, 8 C. C. A. 322, 325; National, etc., Association v. Shryock, 73 Fed. 774, 20 C. C. A. 3, 11; Railroad Co. v. Holloway, 114 Fed. 458, 52 C. C. A. 260; United States v. Gentry, 119 Fed. 70, 55 C. C. A. 658, 663. So, although there may have been competent evidence sufficient to sustain the verdict, yet if improper evidence was received which might have influenced the jury, or the chances are even that it may have had a tendency to injuriously affect the minds of the jury, the verdict should be set aside. Lowry v. Harris, 12 Minn, 255 (Gil.
The learned trial judge was evidently impressed with the fact that the jury displayed ill judgment or temper in exaggerating the amount of the damages, as he compelled a remittitur of part of the award. It is impossible, however, to say whether or not it fully neutralized the sympathy naturally aroused in the mind of the jury by the vice of this evidence. Where the beneficiary of such evidence insists upon its admission against the protest of the adversary party, every presumption of the fullest tendency of its hurtful effect should be indulged.
A more important question remains to be answered, which is, should the trial court have granted the request made by the plaintiff in error for direction to the jury to return a verdict for the defendant below on the whole evidence? This case presents an apt illustration of the frequent abuse of the wholesome rule of law that imposes upon the master the obligation only to exercise ordinary and reasonable care to furnish a safe place in which the employé is assigned to work, so as not to expose, him to unnecessary hazards. Choctaw, O., etc., R. R. Co. v. Holloway, 191 U. S. 338, 24 Sup. Ct. 102, 48 L. Ed. 207. This rule is always hedged about with reasonable conditions, such as will not impose upon the employer the bürden of making him the absolute insurer of the safety of the employé, nor excuse the employé from the exercise of reasonable care on his part to avoid such dangers as are obvious to his eyes, or not to unnecessarily expose him to a danger which the exercise of reasonable care on his part would avoid. Negligence is always a relative question. It is that degree of care and circumspection which a reasonably prudent person may be expected to exercise under like circumstances.
This case is presented throughout by counsel for defendant in-error as if she was then a mere novice and a girl of tender years. But the evidence shows that she was neither a minor nor a dolt. On the contrary, she was a woman over 18 years of age, and, under the laws of the state of Minnesota, she was “considered of full age for all purposes.” Section 2, c. 59, p. 613, vol. 1, Gen. St. Minn. 1878. She was a manumitted person. And, as evidence of her intelligence, she had, prior to working for the plaintiff in error, learned and practiced the art of stenography. In the spring of 1902 she had worked in another like factory operated by machinery, but in which the baked material was delivered by hand at the tables where packed. She had worked for six weeks prior to this accident at the table next to the one where she was injured. It is true that at table No. 2, where she had so worked, the return elevator by which the empty pans were raised to the sixth floor was inclosed, for about three or four feet above the sprocket shaft, with boards screwed onto the framework, and then for a space in the center of about seven feet uninclosed, and above the uninclosed space again inclosed on the side, but not in the center, so that the boards would have prevented putting her hands into the place between the spreaders, or perhaps, seeing between them, in her immediate front. But
The law does not impose upon the master the extreme obligation to warn the servant “of every .possible manner in which injury may occur. He must examine his surroundings, and take notice of obvious dangers and the operation of familiar laws.” Nor can he demand that he shall be warned against risks that are as obvious to him as to the master. Miss. River Logging Co. v. Schneider, 74 Fed. 201, 20 C. C. A. 390; Dresser, Emp. Liab. § 99; Goodridge v. Washington Mills Co., 160 Mass. 234, 35 N. E. 484. As said by Judge Sanborn in St. Louis Cordage Co. v. Miller, 126 Fed. 508, 61 C. C. A. 490, 63 L. R. A. 551:
“A preliminary question for the judge always arises at the close of the •evidence before a case can be submitted to the jury. That question is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury can properly render a verdict in favor of the party who produces it.”
In view of the indisputable facts in this case, it was not one to be turned over without comment by the court to the jury, to indulge the impulse of sympathy rather than give heed to the voice of the law.
The judgment of the Circuit Court must be reversed, and the cause remanded for further proceedings in conformity with this ■opinion.