Moyes v. Ogden Sewer Pipe & Clay Co. BYRON R. MOYES, a Minor, by STEWART H. MOYES, His Guardian Ad Litem, Respondent, v. THE OGDEN SEWER PIPE & CLAY COMPANY, a Corporation, Appellant. No. 1561. (77 Pac. 610.) 1. Master and Servant: Injury to Servant: Negligence Contributory Negligence: Question for Jury. Plaintiff, a boy 14 years of age, the day after he started to work in a sewer pipe factory, was placed at work at a clay hopper. He was required to notify another servant to start the machinery when desired, which was done by pulling a bell cord. The bell was located directly under the hopper, and was accidentally rung on some occasions by pieces of clay falling through an open space in the floor. There was a conflict in the evidence as to whether plaintiff had received instructions as to the manner of doing the work. While he was cleaning clay from the plunger, the bell rang by accident, when the plunger was caused to descend, and amputated plaintiff's arm. Held, that defendant's negligence in permitting the bell to be exposed and in failing to warn plaintiff and plaintiff's contributory negligence were for the jury.1 2. Same: Assumption of Risk: Question for Jury. Plaintiff did not assume the risk of injury under such circumstances as a matter of law; but whether he was justified in assuming that his employer expected him to use his hands to clean the plunger, no other tools having been furnished for that purpose, was for the jury. (Decided June 30, 1904.) Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge. 1 Young v. Clark, 16 Utah 42, 50 Pac. 832; Anderson v. Daly Min. Co., 15 Utah 22, 49 Pac. 126. Moyes v. Ogden Sewer Pipe & Clay Co. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. AFFIRMED. C. S. Varian, Esq., for appellant. By instructions 13, 15 and 17 the court charged the jury that it was the duty of the master to instruct young and inexperienced servants only concerning dangers in the employment which were known, or ought to have been known, to the master in the exercise of ordinary care and prudence, and of which the servant, by reason of his youth and inexperience, was ignorant, and which he could not reasonably be expected to discover in the exercise of ordinary care on his part; that masters who employ young persons to work with dangerous machinery should anticipate that they would exercise only such judgment, discretion and care as is usual among persons of the same age under similar circumstances, and that it was the duty of the master to instruct such employees as to dangers which, because of the youth and inexperience of the servant, the master, in the exercise of ordinary care, might reasonably anticipate the servant would not apprehend or appreciate; that, as to the alleged inexperience and immaturity of the plaintiff in this case, in order to charge the defendant with negligence on the ground of failure to warn and instruct the plaintiff as to the dangers connected with his employment, as specified in the amended complaint, it must appear that the defendant knew, or by the exercise of reasonable care and observation, might have known, of the inexperience, disqualification and immaturity of the plaintiff; and, further, that this fact must be proven by the plaintiff by a preponderance of the evidence; that, in the absence of the evidence of the defendant's knowledge, or the fact that by the exercise of Moyes v. Ogden Sewer Pipe & Clay Co. reasonable care it might have had the knowledge of the inexperience, disqualification and immaturity of the plaintiff as relating to his employment the jury could not rely upon inference, conjecture or their personal experience; that the plaintiff must prove, not only that he was inexperienced and immature in age and unacquainted with the machinery and therefore required instructions, but also that the defendant knew, or by the exercise of reasonable care and observation, might have known, of such inexperience, immaturity and disqualification. Now, these instructions lead the jury directly to the question of danger known or to be reasonably apprehended in the course of the employment of the plaintiff. They are predicated solely upon the theory of plaintiff that it was a duty of his employment to keep the clay pot free from clay. They do not embrace the question sharply made by the pleadings and in the evidence, that the danger which, in fact, did overtake the plaintiff, was not an incident to his employment, and might not have been reasonably anticipated by the defendant, and as they stand, state propositions of law which are applicable to but a part of the case made in the evidence. If it was no part of the duty of the plaintiff in the course of his employment to leave the place prepared for him to do his work, and undertake to remove the clay from between the tile press and the plunger, and if the defendant, in the exercise of ordinary care and prudence in the employment of the plaintiff believed that the plaintiff was qualified and fitted for the particular work given him to do, and had no reason to believe otherwise, and could not reasonably have been expected to anticipate that one of the plaintiff's age, experience and apparent intelligence and judgment would have undertaken to do what he did while the machine was in service, can it be affirmed that the law, notwithstanding, would still hold the defendant liable for the consequences? All of these matters were supported Moyes v. Ogden Sewer Pipe & Clay Co. by evidence on behalf of the defendant, and indeed, find corroboration in the evidence for the plaintiff. In this state of the case, in order that the matter should be submitted fairly to the jury, the defendant had a right to have the charge expanded with some particularity upon these questions. It therefore presented by request to charge numbers 10-15-20 (next hereinafter set out), the law applicable to the case upon the theory as above, but the court declined so to charge, and in this particular we think committed a grave and prejudicial error. "10. If you find, in this case, that the age, intelligence and experience of the plaintiff were such as to induce the defendant, exercising ordinary care and prudence in employing plaintiff to believe him qualified and fitted for the work in which he was employed in and about the feeder of the tile press, and that the defendant, exercising ordinary care and prudence in the employment of the plaintiff, and having no reason to believe otherwise, did believe that the plaintiff was qualified and fitted for the said work, and that the defendant could not reasonably be expected to anticipate that a body of plaintiff's age, experience and apparent intelligence and judgment would undertake to remove the clay from the top of the press with his hand, while the machine was in service, you can not find for plaintiff on the ground that there was a failure to instruct and warn plaintiff in the premises, but must look further for some other negligence on the part of the defendant, alleged in the amended complaint, before you can find a verdict for the plaintiff." "15. If you find that the plaintiff had the intelligence, capacity and judgment ordinarily possessed by boys of his age, and that an ordinarily prudent boy of that age, in a like employment and possessing the same experience as did the plaintiff, would have appreciated the danger and risk of intruding his arm underneath the plunger to remove the clay, and that there was no necessity or requirement in the service of plain Moyes v. Ogden Sewer Pipe & Clay Co. tiff, that he should intrude his arm and hand between the plunger and the press, to remove the clay, and that this would have been apparent to an ordinarily prudent boy of his age, experience, capacity and intelligence, under like circumstances, then you are instructed to find for the defendant." "20. If you find from the evidence that it was no part of the duty of the plaintiff, in his employment, to remove the clay from between the plunger and the top of the cylinder press with his hand and arm, and that he was acquainted with the methods of feeding the clay and operating the plunger and the tile press, and had sufficient intelligence, capacity, experience and judgment to appreciate the risk of intruding his hand and arm between the plunger and the tile press to remove the clay, but that, notwithstanding, upon the occasion of the accident, he undertook to remove the clay with his hand, and for that purpose, intruded his arm between the press and the plunger, and that, while so engaged, he himself pressed his body or limb against the wire connecting with the gong or bell, and thereby caused the same to be rung and give the signal to the pressman, who acted thereon causing the plunger to descend, resulting in the injury whereby the plaintiff lost his arm; and that but for such attempt on the part of the plaintiff to remove the clay with his arm and hand he would not have caused the said signal to be given and the said accident would not have happened, you are instructed that such acts on the part of the plaintiff would constitute negligence, contributing directly to the injury, and in such case the plaintiff cannot recover, and you must find for the defendant." It is to be observed that the tile press and plunger were not necessarily dangerous appliances in themselves; they were the ordinary machinery employed in the business of the defendant and necessary to the service; they concealed no peril to life or limb, and involved no danger not open to the observation of all. If the |