Craven v. Smith

• Decision Date: 11 December 1894
• Parties: CRAVEN v. SMITH.
• Court: Wisconsin Supreme Court

89 Wis. 119

61 N.W. 317

CRAVEN

v.SMITH.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by Paul Craven, an infant, by his guardian ad litem, against Charles T. Smith, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was employed by the defendant, September 23, 1891 (he being then 11 years of age), in riding a horse attached to a corn cutter in the defendant's field. While so riding, the horse ran away, plaintiff was thrown off, fell under the machine, and received deep cuts on the shoulder and over the eye. The complaint charged that the machine was a dangerous one; that the horse attached to it was a vicious horse, to defendant's knowledge; and that the appliances furnished for managing and riding the horse were insufficient; and that the defendant was negligent in not informing or cautioning the plaintiff as to the dangerous character of the machine and the service. The answer, while admitting the plaintiff's injury, denied all negligence on the part of the defendant, and alleged contributory negligence on the part of the plaintiff. It appears that the machine which inflicted the injury consists of a V-shaped platform, on runners like a sled, with sharp knives projecting outward along the wings or sides of the platform, so that, a horse being hitched to the apex of the platform, and drawing the same between two rows of corn, the knives came against the rows of corn upon each side, and cut them. When in operation, a man stands on each wing, and gathers the corn in his arms as fast as it is cut, until an armful is gathered, when the horse is stopped, and the men get off the machine with the corn in their arms, and set it up. The men then get on the machine again, the horse is started, and the same process repeated. At the time of the accident, Charles Hare and Homer Smith were riding and operating the machine, and the plaintiff was riding the horse. The testimony shows without dispute that the horse had run away several times, to the defendant's knowledge, within the preceding two or three years, but there was also testimony that the horse was gentle when driven single. The plaintiff had little or no experience in riding horses, and had never seen this work done prior to the morning of his injury. The horse was harnessed on the morning of the accident by Charles Hare, was testifies that the defendant helped him in harnessing the horse. There was no saddle upon the horse, but a loose blanket placed upon his back for the rider. The defendant does not deny in assisting in the harnessing of the horse, but says he might have done so, but does not recollect. The defendant was not present when the plaintiff got on the horse. He was put on by Hare and Homer Smith. Plaintiff himself testifies that no instructions or cautions were given him when he mounted the horse, or at any time. The only testimony as to any instruction or caution was that of Homer Smith, who testified that the plaintiff held the lines very loosely, and that he told the plaintiff to take hold further up on the lines, and keep an ordinary snug rein upon the horse when he stopped. The plaintiff testified that he was carrying a long flat file, which Homer Smith gave to him to carry. This file was used to sharpen the knives upon the machine. It appears that they had gone once or twice across the field in safety when the accident happened. Just after Hare and Smith had got off the machine to set up the corn, and were about to get on the machine and start again, the horse started, without apparent cause, slowly at first, and then on a run, and ran the whole length of the field. At the end of the field the horse turned, and the plaintiff was thrown off, and injured by the knives of the machine, as before stated. There was evidence that both the arm and the eye were permanently and seriously injured.

So far as necessary to understand the questions raised upon the judge's charge to the jury, the instructions are as follows, the portions excepted to being in italics: “It is now clearly settled that if a master employs a servant to do work in a dangerous place, or when the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet, if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, 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 work safely, with proper care on his part. In applying this principle of law to this case, you will first determine from all the evidence in the case whether the work which was required of the plaintiff was dangerous; and, in considering this branch of the case, you may take into consideration the evidence bearing upon the character of the work engaged in by the parties, the testimony as to the character of the horse, and as to the machine which was attached to the horse, and the nature of the work to be done, the appliances, if any, which were furnished for riding the horse, and all the other facts and circumstances appearing in the evidence. If you find from the evidence that the work required of the plaintiff was dangerous, then the law imposed upon the defendant, Smith, the duty of giving to the plaintiff such instructions or cautions as would enable him to comprehend the danger, and to do his work safely, with...