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is based upon the assumed fact that the bargain was a good one at the price of eight thousand dollars. It must be evident that it would have been a better bargain at the price of three thousand dollars. The plaintiff was entitled to his share of the full profit of the bargain. He was entitled to all the profit there was in the bargain by paying only his share of the price. Whatever he has paid more than his share of the price, by so much is the value of his bargain diminished. This is damage. It is damage of which the deceit is the cause. The plaintiff paid two thousand five hundred dollars more than his share of the price. The judge ment of the circuit court is right, and is affirmed.
By the Court. Judgment affirmed.
Deceit.-An action for false representations, called also an action for deceit, may be maintained against a party who makes a false representation of a fact, with knowledge of its falsity, to one who is ignorant of the falsity, with intent that it shall be acted upon, where the person to whom it is made acts upon it, and by so doing suffers injury: See monographio note to Coltrill v. Krum, 18 Am. St. Rep. 555, 557, showing a conflict of authority upon the question as to whether an action will lie against a von. dor of real estate for false representations made by him as to tho prioo which he paid for the property.
LUEBKE V. BERLIN MACHINE WORKS.
(88 WISCONSIN, 442.) MASTER AND SERVANT-ASSUMPTION OF RISK BY MINOR SERVANT.-In
working in a dangerous place an adult servant must take ordinary caro to observe and ascertain what dangers and defects are incident to his service, and if, by the use of such care, he ought to observe and comprehend such dangers or defects, he assumes all risk by continuing in the employment; but whether a minor servant is of sufficient age, intelligence, discretion, and judgment to bring him within the opera.
tion of this rule is a question of fact for the jury. MASTER AND SERVANT_MINOR SERVANT'S KNOWLEDGE OF DANGER, HOW
DETERMINED.-A minor servant, in working in a dangerous place, must, as much as an adult, exercise the degree of intelligence, knowledge, and judgment actually possessed by him. The question, however, in such a case, is not what the minor, in fact, kno or comprehends as to tho danger to which he is exposing himself, but what he, in view of his age, intelligence, discretion, and judgment, ought to know and under stand. ACTION by the plaintiff as administrator of his deceased minor son, John Luebke, to recover damages sustained by
an. St. REP., VOL. XLIN -58
the plaintiff by reason of the death of such son, caused, as alleged, by the negligence of the defendant when he was in its employment. There was a verdict and judgment for the plaintiff, and defendant appealed. It appeared that the defendant owned and operated a foundry and machine-shop situated on and partly over a mill-race, along Rock river, at Beloit. A narrow plank foot-bridge, without a railing, extended from a platform of the building across the race to the east side of it. This bridge 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 core room of the foundry in which the plaintiffs' intestate, with other boys employed by the defendant, worked under a foreman making cores for castings, was a short distance 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, a short distance above the east end of the bridge. There was a wagon bridge just below and south of the core-room, which was wide and safe, available to and sometimes used by the boys for getting flour froin the mill. The evidence tended to show that they were never directed to go any particular way to get flour, or to 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. Up to September 15, 1892, plaintifl's intestate, then a boy about sixteen years of age, had been in defendant's employ for several months. He was then, and had for some time been, at work in the core-room, it being his duty to make cores, attend to the fires, and to go after flour, etc. On the day in question he went over to the mill with the wheelbarrow to get flour. It did not appear that he had been specially directed to do so. He was advised by the miller to go back by way of the wagon bridge. He was not afterwards seen alive, and was taken out dead on the east side of the mill-race, the evidence tending to show that he must have fallen in about the middle of the foot-bridge. He left surviving him his father, the plaintiff, and his mother, each aged about fifty-five years and dependent in part on his services. Defendant asked the court to instruct the jury 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 bis 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 80 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.” This request was refused.
Winkler, Flanders, Smith, Bottum & Vilas, for the appellant.
Winans & Hyzer, for the respondent.
147 PINNEY, J. The evidence tends very strongly to show that the dangers to which the plaintiff's intestate was ex. posed 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 448 Use of the wornout 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 asbumed the risk if he continued in the employment: Haley v. Jump River L. Co., 81 Wis. 412, 421, 425; Dorsey v. Phillips etc. Const. Co., 42 Wis. 583; Ballou v. Chicago etc. Ry. Co., 54 Wis. 257; 41 Am. Rep. 31; Goltz v. Milwaukee etc. Ry. 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 posBess 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; 57 Am. Rep. 269. 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 judg. ment as to enable him to comprehend the situation and appreciate the danger incident to the work or employment. 449 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 jury 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 Paper 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 case, and the case was 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 bave known and understood, in view of his age, intelligence, discretion, and judgment, but upon what he in fact knew or comprehended as to the dan. ger 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 to 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 450 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 Court. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
MASTER AND SERVANT — Minor EMPLOYEE. — A minor employee who knows and appreciates the danger and peril of the work in which he is engaged assumes the risk of his employment. If he is ignorant, however, of such danger and peril by reason of youth and inexperience, and has not been properly instructed by his employer, the latter is answerable for an injury sustained by reason of a want of such knowledge. Most especially should this duty of instruction be performed, when the dangers and the means of avoiding them are not apparent or fully within the comprehension of the servant. . Whether a servant was such a person as was entitled to have special instructions concerning risks to which he was exposed, and the means of avoiding them, and whether the duty of instructing him was discharged by his employer, are matters for the jury to determine from all the facts and circumstances of the case. The burden is on the servant to prove the existence and breach of such duty, and, in determining whether a minor employee was, when injured by dangerous machinery, exercising ordinary care, the jury may take into consideration his age, intelligence, and discre. tion, and his knowledge of, or inexperience with, machinery. The same degree of care is not required of a mere boy of inexperience and immature judginent as of a person of mature years: Chicago etc. Brick Co. v. Rein. neijer, 140 Ill. 334; 33 Am. St. Rep. 249. Proof that a minor servant had done the work, in the doing of which he was injured, for some time prior to the accident, and of the number of times he had done it, may be properly considered by the jury in determining whether the master was negligent in requiring him to continue it. Ordinary care for minors is that degree of care which children of the same age are accustomed to exercise under simi. lar circumstances. A minor servant, properly instructed concerning the danger of his employment, thereafter, stands on the same plane with other servants with respect to the risks of the emyloyment: Note to Greenway V. Conroy, 40 Am. St. Rep. 718