
    Wagner, by guardian ad litem, Appellant, vs. The Plano Manufacturing Company, Respondent.
    
      March 20
    
    
      April 9, 1901.
    
    
      Master and servant: Personal injuries: Negligence: Felloic-servant: Obvious clanger: Failure to team.
    
    1. Defendant’s agent requested plaintiff, a boy fourteen years old, of ordinary health and intelligence, to assist him in putting trucks under a binder, and plaintiff was injured by the negligence of the agent in allowing the binder to tip over while plaintiff was so employed. Held, that plaintiff and the agent were fellow-servants of defendant, and that plaintiff was entitled to the same protection as any other servant of defendant of similar age and intelligence, and was subject to the same risks of injury from the negligence of a fellow-servant.
    
      2. In such case the danger of the machine falling over, being one within the common knowledge of boys as well as men, was not such a danger as called for a warning from defendant’s agent before setting plaintiff at work, and failure in that regard did not constitute negligence.
    Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dice, Circuit Judge.
    
      Affirmed.
    
    This is an action to recover for personal injuries. The facts appearing upon the trial were substantially as follows: In June, 1898, the plaintiff, who was a boy a little less than fourteen years of age, of ordinary health and intelligence, was living at Waukesha, with Yalentine Imig, who was his stepfather, and is his guardian ad litem in this action. Imig was an agent for the defendant, The Plomo Manufacturing Company, and in 1897 had sold a binder made by said company to a farmer in the vicinity, who was unable to pay for the same, and in 1898 the machine was taken back from the farmer by another agent of the defendant, who thereupon sold it to Imig, with an agreement that a new pair of trucks should be furnished with the machine. The machine was upon a farm near Waukesha, and the trucks were after-wards procured and an attempt was made by Imig to place them under the binder, but it appears that they would not fit. Thereupon Imig notified the general agent of the defendant at Eond du Lac of the fact that the trucks would not fit; whereupon the agent sent an expert, one Diebler, to Waukesha to fit the trucks to the machine. Diebler called on Imig, and learned what the difficulty was, and Imig sent the plaintiff with a horse and buggy to take Die-bler out to the farm and show him the binder and the trucks, in order that Diebler might fit them together. On arriving at the farm where the binder and trucks were, there being no other man to assist Diebler, he requested the plaintiff to assist him, and the plaintiff consented to do so. In this operation, Diebler first directed the boy to get a block to prop up the binder, which he did, and, the first block not being long enough, he procured another. Diebler thereupon lifted up the binder, and told the plaintiff how to place the block so as to prop it up, and the boy placed the block under the binder, but Diebler said it was not quite solid enough, so Diebler lifted up the binder again, and the plaintiff placed the block in a better position, and then Diebler said, “ It’s all right,” and then took the tongue out of the machine, and threw it on the ground, and told the boy to hold onto the trucks. In doing this, the boy had to go in front of the binder, and sat down upon the ground. While so holding tne trucks they slipped off in some manner, and Diebler came back and put the machine on again, and said to the boy, “Hold them good,” and turned away again, and as he was turning away the pressure threw the machine forward, the block fell, and an iron rod projecting down from the machine penetrated the plaintiff’s leg, inflicting quite serious injuries.
    The plaintiff claims that Diebler was negligent in failing to warn the plaintiff of the danger of the machine falling over, and also in failing to properly block or prop up the machine. A verdict for the defendant was directed, and from judgment thereon the plaintiff appeals.
    Eor the appellant there was a brief by Armin <& Waite, and oral argument by G. E. Armin.
    
    Eor the respondent there was a brief by JRyam c& Merton, and oral argument by E. Merton.
    
   WiNslow, J.

When the defendant’s agent, Diebler, requested the plaintiff to assist him in the work of putting the binder upon the trucks, and the plaintiff consented to do so, the plaintiff became for the time being defendant’s servant to all intents and purposes, and a co-employee of the defendant with Diebler, entitled to the same protection as any other servant of the defendant of similar age and intelligence, and subject to the same risks of injury from the negligence of a fellow-servant. Johnson v. Ashland W. Co. 71 Wis. 553; S. C. 77 Wis. 51. If there was serious danger and hazard in the work, which was not obvious, and which a boy of plaintiff’s age and intelligence would not be expected to know, then he was entitled to be warned of such danger, and the failure of Diebler to so warn him would constitute negligence on the part of the defendant; for in this respect Diebler was undoubtedly a vice principal. If, however, there was no failure of duty in this respect, the subsequent failure of Diebler to properly block the machine would be simply the negligence of a co-employee, for which the defendant would not be responsible. Klochinski v. Shores L. Co. 93 Wis. 417.

The question to be decided, therefore, is simply whether the danger of the machine falling over was such a danger as called for a warning on the part of Diebler before he set the plaintiff at work.

Upon this question, it seems to us that the answer must dearly be in the negative. The placing of a binder upon its trucks is an operation of a similar character to many operations which are continually going on upon a farm, and in which boys of the age of the plaintiff are frequently called upon to assist. The danger of the machine falling over, if not properly blocked up, was patent to a boy of this age as well as to a man. There is, of course, danger in any operation involving the lifting and moving of heavy articles which may lose their equilibrium, but this danger is one within the common knowledge of boys as well as men. It would not be reasonable to hold that a boy must be warned that a heavy article may fall and hurt him, if not properly supported, every time he is asked to assist in moving it. Warning is not required against obvious dangers in ordinary-operations which are matters of common knowledge to all. Bailey, Personal Injuries, § 2730. The boy received an unfortunate and serious injury, but we are unable to see that the defendant is responsible for it upon any principle of law.

By the Court. — -Judgment affirmed.  