
    Luebke, Administrator, Respondent, vs. Berlin Machine Works, Appellant.
    
      October 4
    
      October 23, 1894.
    
    
      Master and servant: Injury to minor servant: Knowledge of danger: Assumption of risk: Court and jury: Instructions.
    
    1. It is a question of fact for the jury whether a minor servant was of sufficient age, intelligence, discretion, and judgment to bring him within the operation of the rule applicable to adults, by which knowledge of open and obvious defects and dangers is imputed to them, and they are held to assume the risk incident thereto if they continue in the employment.
    2. The question in such a case, however, is not what the minor servant m fact knew or comprehended as to the danger to which he was exposing himself, but what he ought to have known and understood, in view of his age, intelligence, discretion, and judgment; and, upon request, the jury should be so instructed.
    APPEAL from the Circuit Court for Rock County.
    This action was brought by the plaintiff, as administrator of his deceased minor son, John Luebke, to recover damages sustained b\r the plaintiff by reason of the death of the said John Luebke, caused, as it is alleged, by the negligence of the defendant when he was in its employ; and the plaintiff obtained a verdict and judgment, from which the defendant appealed.
    The defendant owned and operated a foundry and machine shop situated on and partly over a mill race along Bock river, at Beloit. From a platform of the building a foot bridge extended across the race to the east side of it, and it was used by those who had charge of the power to go to and from the shop and foundry to the power house on the east side of the race. The bridge consisted of three lengths of planks, supported by piles driven in the race and cross pieces 2x4 or 2x6 spiked to the piles; and at the east end and in the middle it was two planks in width, buc at the west end next to the shop and foundry there was but one plank, about ten inches wide, fastened at the west end about ten inches below the platform. The planks were two inches thick, and at the east end rested on the bank of the race about one foot above the general level, and there was no railing along the bridge. The core room of the foundry, in which the plaintiff’s intestate, with other boys employed by the defendant, worked under a foreman, making cores for castings, was about 160 feet south or below the bridge, and they required and used considerable flour in making them, which they obtained at a flour mill on the opposite or east side of the race, about 100 feet above the east end of the bridge. There was was a wagon bridge a short distance below and south of the core room, which was wide and safe, available to and sometimes used by the boys for getting flour from the mill. The evidence tends to show that they were never directed to go any particular way to get flour or use the foot bridge, but went either way as they chose; that the defendant knew of and permitted the use of the foot bridge by the boys for that purpose-; and that the wheelbarrow they used was an old _ rickety one, and not a safe appliance for the purpose of bringing flour over the foot bridge. When the boys used the foot bridge to get flour, they passed from the core room into the foundry, thence into the machine shop, and thence to the door opposite the foot bridge, and out upon a platform upon and over the foot bridge to the flour mill. When they went over the wagon bridge below, they passed from the core room into the foundry, thence into the room next the core room in the front of the foundry, opening upon the street, and thence across the wagon or highway bridge over the race and along the highway up to the mill. In returning with a load of flour, they ran the wheelbarrow up a single plank upon the foot bridge; but at the west end of it, next the shop, where there was but a single plank, some one was required to lift the barrow up on the platform. It was claimed on the part of the plaintiff, and there was evidence tending to support it, that the bridge was not a reasonably safe passageway for use by the boys in bringing flour from the mill to the foundry, more particularly by reason of the manner of its construction and narrowness and want of railing, and that the wheelbarrow was not a safe vehicle for bringing flour, but was old and rickety, and its use for that purpose was unsafe.
    The plaintiff’s intestate, about the 15th of September, 1892, of the age of nearly sixteen years, had been in defendant’s employ for several months from time to time, and then was, and had been since the previous June, at work in the core room, and it was his duty to make cores, attend to the fires, and go after flour, etc. On the day in question he went over to the mill with the wheelbarrow to get flour. It does not appear that he had been specially directed to do so, and no one seems to have seen him until he reached the mill and asked for flour. The miller put a bag of flour on the barrow, and asked him “ which way he was going with the flour; if he was going over by the wagon bridge or the foot bridge. He answered he would go by the foot bridge, and I advised him, I told him it was better he would go around by the wagon bridge. He said if he would dump the flour in he would come back and get another sack; that is all that was said. He went on, and I went into the mill.” It does not appear that he was afterwards seen alive. The alarm was given that some one was in the race, and he was taken out dead on the east side thereof. The barrow was nearer the east side than the west side of the race, and the evidence tended to show that he must have fallen in about the middle of the foot bridge.
    The plaintiff claimed that the bridge across which the boys were required, or accustomed with the knowledge of the defendant, to bring flour in the wheelbarrow, was dangerous and unsafe by reason of improper and negligent construction, and .was an unsafe place for passage by one so young as the deceased; and that the wheelbarrow with ■which he was furnished was an unsafe and insufficient appliance, as the defendant well knew; and that the defendant negligently omitted to inform or caution the deceased in respect to the use of said bridge and barrow, as it should have done; and that by reason of the premises, and on account of the defendant’s said negligence, the said John Luebke tripped, lost his footing and balance, and fell and was thrown into the race, and lost his life by drowning. He left, surviving him, his father, the plaintiff, and his mother, each aged about fifty-five years and dependent in part on his services.
    The more material allegations of the complaint were denied by the defendant, and it was claimed, among other things, that the said John Luebke was guilty of contributory negligence in using said bridge and wheelbarrow; that he was of sufficient age, intelligence, and discretion to comprehend the dangers in question to which he was exposed, and that he had knowledge of the same and assumed the risk thereof; that the defects in the foot bridge and wheelbarrow were open and apparent defects.
    There was evidence tending to support the various contentions of the parties, and the court, on the part of the defendant, was asked to instruct the jury, among other things, in substance, that “ in determining whether the boy was of sufficient age, understanding, and experience to comprehend the dangers to which the use of the bridge for carrying flour as he carried it on his last trip exposed him, you are to consider his age and opportunities which he had to observe the apparent danger of wheeling a barrel of flour across the mill race upon the foot bridge, and to determine from all the facts and circumstances surrounding his death whether or not he was of such an age and understanding that, even though, he may not have fully apprehended it, yet that the danger was so open and apparent, if you find it to be so, that a boy of his age, experience, and understanding ought to have known it and ought not to have exposed himself to it.” But the court refused to so charge. Other like instructions on this point were asked and refused. The court instructed the jury on the question of contributory negligence and on the question of assumed risk, to portions of which exceptions were taken, in substance, that “ a servant rqust exercise ordinary care for his personal safety in any employment. He must make a reasonable use of his senses to avoid injury to himself in jthe course of his employment; and if he fails to do so, and in consequence of such failure he is injured, he cannot recover damages of his master. An employer is not liable for an injury sustained by an employee where his own negligence or want of ordinary care contributes materially to the injury. ... A servant, on entering a service, accepts and assumes the ordinary hazards and dangers of his occupation,— such as are incident to it; and for an injury sustained through such danger he cannot recover. It is the duty of the employee, without warning, to observe due care, and any omission to do this is at his own peril. . . . If an employee, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the danger of an employment, it is a breach of duty on the part of the master to expose such a servant, 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 duty. . . . The question on this branch of the case is not of dxie cwre on the part of the plaintiff,, Tout whether the cause of the ingnry was one of which he knowingly assumed the risk, or one of which, by reason of his youth and consequent incapacity to understand and appreciate its dangerous character, or the neglect of the defendant to take due precautions to effectually inform him thereof, the defendant is bound to indemnify him for the consequences.”
    The jury found a general verdict for the plaintiff, assessing his damages at $1,800, and also a special verdict finding, among other things, that the officers and agents of the defendant knew that the foot bridge was insufficient and dangerous for use, but did not inform the boy of such danger; that before attempting to cross the foot bridge at the time in question he was warned or cautioned by Mr. ITaase, the miller, to go around another way; -that he was not aware of the fact that it was dangerous to attempt to cross the bridge with a wheelbarrow loaded with flour, prior to his said attempt; that he did not knowingly take upon himself the risk of accident in crossing the foot bridge at the time in question; that the wheelbarrow was not in a reasonably safe condition for the use to which it was put; that the boy was in the exercise of ordinary care at the time he fell from the foot bridge and was drowned; and that he was not fully aware of the danger he was subjecting himself to in crossing the race on the bridge with a wheelbarrow loaded with flour. A motion for a new trial, on the ground, among others, that the verdict was contrary to law and contrary to the evidence, was denied.
    For the appellant there was a brief by Winkler, Glan-ders, Smith, Bottum cfe Vilas, and oral argument by E. P. Vilas.
    
    For the respondent there was a brief by Winans dk Ilyzer, and the cause was argued orally by E. M. Ilyzer.
    
   Pinney, J.

The evidence tends very strongly to show that the dangers to which the plaintiff’s intestate was exposed in his service and in crossing the foot bridge with the wheelbarrow loaded with flour, whether arising from the defective and dangerous construction of the bridge or the use of the worn out and rickety wheelbarrow, were open and obvious, and that he must have been familiar with the situation for a period of about three months, during which he was engaged in the core room, and immediately prior to the accident. Had he been an adult, it is difficult to see upon what ground it could be said that he had not, as a matter of law, by continuing so long in the service of the defendant, assumed the risk of injury from those causes, so that the case ought not to have been submitted to the jury. It is well settled that if the alleged defect or element of danger is such that, in the exercise of ordinary care, the servant ought to have observed it and comprehended the danger likely to result, then he assumed the risk if he continued in the employment. Haley v. Jump River L. Co. 81 Wis. 412, 421, 425; Dorsey v. Phillips & C. Const. Co. 42 Wis. 583; Ballou v. C. & N. W. R. Co. 54 Wis. 257; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136. The servant must take ordinary care to observe and ascertain whether any or what dangers are incident to his service. If the defect or danger is open and obvious, knowledge of it on his part will be presumed or imputed to him as a matter of law; and an adult servant is presumed to possess ordinary intelligence, judgment, and discretion to appreciate such danger, so as to regulate his conduct and avoid it. Knowledge of the danger, and consent to continue in the service notwithstanding, is in such case imputed to the servant; so that if he subsequently suffers injury in consequence thereof he has no right of recovery against the master. This view is in accordance with what was held in Jones v. Florence M. Co. 66 Wis. 268, 277. The same rule applies to the case of an employee who is a minor, where the defect or danger is open and obvious, in so far as he is of such age, intelligence, discretion, and judgment as to enable him to comprehend the situation and appreciate the danger incident to the work or employ-menfc. Subject to this qualification, knowledge of the defect or danger is to be imputed to him in like manner as to an adult. It is, however, a question for the junr to determine upon the evidence whether a minor servant was of sufficient age, intelligence, discretion, and judgment to bring him within the operation of the rule applicable to adult servants. Chopin v. Badger P. Co. 83 Wis. 192. In the absence of proof, it is fair to presume that he possessed these characteristics in the degree usual to persons of his age. Because the question was one for the jury, the defendant’s motion for a nonsuit and the request that the jury be directed to find for the defendant were properly denied.

The instruction asked by the defendant, and refused, should, we think, have been given. The consequence of its refusal was that the defendant was denied the benefit of the rule as to imputed negligence and assumed risk, to the extent it was properly applicable to the ease, and the case wms made to turn, so far as open and obvious defects and danger were properly an element in the case, not upon what the plaintiff’s intestate ought to have known and understood, in view of his age, intelligence, discretion, and judgment, but upon what he in fact knew or comprehended as to the danger to which he was exposing himself. He was bound to. exercise the degree of intelligence, knowledge, and judgment he actually possessed, as much so as an adult, and must be held t-o have assumed the risk if he exposed himself to a danger which was open and obvious and which he was capable of perceiving and fully appreciating, whether he actually appreciated and comprehended it or not. The general charge does not contain any instruction equivalent to the one asked, and entirely excluded from the consideration of the jury the material question whether the plaintiff, in view of his age, intelligence, discretion, and judgment, ought reasonably to have known and understood the dangers to which he was exposed in his employment. The effect of this error is indicated by the answers of the jury to questions submitted to them, as above stated.

Other errors were assigned, but, as the questions thus presented may not arise on a new trial, it is not necessary to consider them. For the reasons stated, the judgment of the circuit court must be reversed.

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