Wolsk v. Knapp-Stout & Co., 90 Wis. 178

Wolsk v. Knapp-Stout & Co.

90 Wis. 178 | Wis. | 1895

Newman, J.

There were two principal questions involved before the trial court: (1) Was the respondent liable on the *181ground that it bad not sufficiently explained to an inexperienced employee tbe ordinary dangers o£ tbe employment? And (2) whether tbe deceased, under tbe facts disclosed by tbe testimony, assumed tbe risk of tbe ordinary dangers of tbe service. Tbe testimony seems to show a case very near to tbe border line on both questions. On which side it falls is not entirely clear. Tbe law which is applicable is so weE settled as to have become elementary. Tbe difficulty, if any, is in its proper application to tbe facts of tbe particular case. If tbe danger to which tbe deceased was exposed, in tbe service in which be was engaged was such an open and obvious danger as that, considering bis age, intelligence, experience, judgment, and discretion, be ought, in the exercise of reasonable and ordinary care, to have known and appreciated it, then tbe law is that be assumed tbe risk of that danger. On tbe other band, if this danger was not open and obvious to a person of bis age, intelligence, experience, judgment, and discretion,'then be-is not held to have assumed tbe risk, unless be has been sufficiently informed, in some way, of tbe danger, or has bad a reasonable opportunity to learn it by bis own experience. And tbe duty of informing tbe inexperienced employee of tbe dangers ordinarily incident to tbe service is upon tbe employer. Jones v. Florence M. Co. 66 Wis. 268; Luebke v. Berlin Machine Works, 88 Wis. 442; Craven v. Smith, 89 Wis. 119.

Ordinarily, it is within tbe function of tbe jury to apply these principles of tbe law to tbe facts shown by tbe testimony. It is only when tbe proper application is so clear as to be free from doubt that it becomes a matter of law for the court. Casey v. C., St. P., M. & O. R. Co., ante, p. 113. Tbe testimony given on behalf of tbe appellant certainly tends with considerable force to show that tbe employment upon which tbe deceased was engaged bad elements of danger such as were not open and obvious to tbe inexperienced, *182but such as, in the absence of instruction, could be learned by experience alone; that it required at least some experience to do the work safely; that the deceased was inexperienced in the work, and was not adequately warned of its dangers. The deceased was a minor. So there is no presumption that he understood and appreciated the danger. . And although there is testimony on the part of the respondent tending to show that instruction was given him, it is yet of an inconclusive character and does not clearly establish the fact. So that it cannot be said that the appellant’s case was without testimony fairly to establish it, nor that the facts, or the proper inference to be drawn from the facts, were clear and free from doubt. So it seems to the court that the questions whether the deceased was adequately instructed, and assumed the ordinary risks of the employment, are not so clear, upon the testimony, as that they were matters of law for the court, but that they were questions of fact for the jury.

By the Oov/rt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.