Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185.

"(4) Did the defendant's foreman give to the plaintiff sufficient instructions as to how to run the panels through the saw at or before the time of the injury? A. No.

"(5) If to the above question you answer 'No,' then did the defendant's foreman use ordinary care in not instructing him more fully before setting him at said work? A. No.

"(6) Did the defendant's foreman use ordinary care in setting the plaintiff at work at the saw on which he was injured in view of his age? A. No.

"(7) If to questions No. 2, 5, or 6 you answer 'No,' then was the want of ordinary care thus found the proximate cause of the plaintiff's injury? A. Yes.

"(8) If to the above question you answer 'Yes,' then which was the proximate cause of the injury?

"(a) The looseness of the gauge.X

"(b) Or the failure to give sufficient instructions. "(c) Or setting a boy of his age at work at the saw. "(9) Was there any want of ordinary care on plaintiff's part that contributed to produce his injury? A. No.

"(10) What sum will compensate the plaintiff for the injury sustained? A. $750."

The defendant made the usual motions for judgment and to change the answers to the questions in the special verdict and for judgment notwithstanding the verdict and to set the verdict aside and for a new trial, which motions were denied, except that the court changed the answer to the third question of the special verdict from "Yes" to "No" and ordered judgment for the plaintiff upon the verdict as amended. Judgment was entered accordingly, from which this appeal was taken.

For the appellant there was a brief by Doe & Ballhorn, and oral argument by J. B. Doe.

For the respondent there was a brief by Husting & Husting, attorneys, and Lamoreux & Husting, of counsel, and oral argument by Paul O. Husting and B. J. Husting.

KERWIN, J. Several errors are assigned which in the view we take of the case need not be treated. It is without dispute that the injured boy was under the age of sixteen years, was

Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185.

employed by the defendant to work at the circular saw in question, was injured by the saw while at work, and was not guilty of contributory negligence. Subd. 2, sec. 1728a, Stats. (Laws of 1907, ch. 523), provides:

"No child under the age of sixteen years shall be employed in adjusting any belt or in oiling or assisting in oiling, wiping or cleaning any machinery when the same is in motion or in operating or assisting in operating any circular or band saw, wood-shaper, wood-jointer, sandpaper, or wood-polishing machine, or in any other employment dangerous to life or limb."

Sec. 1728h, Id., provides a fine and imprisonment for violation of the act. The prohibition under this subdivision is absolute and does not suffer the work to be done under permit from the commissioner of labor or other officer as is provided in cases of other employment specified in subd. 1 of the same section. The question therefore arises whether upon the established facts the defendant was guilty of negligence as matter of law. We think the case of Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, is decisive upon this point. In that case it was held that, where a statute imposes a duty upon a class of persons to guard the personal safety of others, a failure to perform such duty constitutes actionable negligence, and renders the person guilty thereof liable to a person intended to be protected who is injured by such negligence without contributory negligence on his part. See Mueller v. Milwaukee St. R. Co. 86 Wis. 340, 56 N. W. 914, and Woolf v. Nauman Co. 128 Iowa, 261, 103 N. W. 785. The employment of the plaintiff in violation of the statute being negligence per se and the injury being caused by reason of such employment, such negligence was the proximate cause of the injury. True, the jury found that the looseness of the gauge was the proximate cause of the injury, but that finding does not help the defendant's case but rather makes the case against it stronger. If the defendant was guilty of negligence as a matter of law in employing the plaintiff to work at any circu

Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185.

lar saw, then clearly it is not relieved of the consequences of its act by employing the plaintiff at a machine which was defective. The employment of the boy at a defective and dangerous machine without warning aggravated the negligence. If the looseness of the gauge contributed to the injury, it was simply a concurrent cause, condition, or circumstance in the chain of events resulting in the injury, not the efficient cause. Winchel v. Goodyear, 126 Wis. 271, 105 N. W. 824; Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563. It is clear that in setting the plaintiff at work at the circular saw in violation of the section quoted the defendant was guilty of negligence as a matter of law, because the section was unquestionably framed for the protection of such boys. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041; Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563. If this act of negligence was the proximate cause of the boy's injury, without contributory negligence on his part, there must be a recovery, and, if such proximate causation appears as matter of law, then the finding of the jury on that question is immaterial.

It is undisputed that the plaintiff's injury was the immediate result of physical contact with the prohibited saw while he was at work. Two of the elements of proximate causation. are therefore shown without dispute: First, that the defendant was guilty of a negligent act; second, that as a result of that act the plaintiff suffered injury. The only other element necessary to complete the claim of proximate causation is the fact that some injury to the boy should have been reasonably anticipated by the defendant as the natural and probable result of setting him at work at the saw. This latter necessary element must be held to be conclusively established by the law itself. The prohibition of the employment of boys about such machines as are dangerous to life and limb amounts to a declaration that such employment is likely to result in physical injury to the boy, and an employer must in all reason be held

Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185.

to know what the legislation has thus declared. The element of anticipation of injury as a natural and probable result of the violation of the law is therefore supplied. Cases like Kutchera v. Goodwillie, 93 Wis. 448, 67 N. W. 729, and Goodwillie v. London G. & A. Co. 108 Wis. 207, 84 N. W. 164, where the law under consideration was not a law forbidding employment of a minor at a given machine, but only forbade his employment generally in a certain occupation, have little bearing upon the present case. In these cases as well as the cases where the alleged negligence consists in the violation of some rule of conduct such as the law regulating the speed limit for locomotives within city limits, it may often be that the violation of the statute, though negligence per se, may not be the proximate cause of the injury. But when, as here, the law forbids the employment of a minor at a certain definite machine, and in violation of that law the defendant employs the minor at that machine, and that machine during the employment inflicts injury on the minor, the chain of proximate causation from the negligent act to the injury is complete as matter of law.

Error is assigned upon the charge. On the question of damages the court charged the jury as follows:

"You will assess such sum as will fairly and reasonably compensate the plaintiff for the pain and suffering the injury caused him, the humiliation or mental suffering, if any, the deformity has caused him, and such, if any, as it will cause him in the future. Such inconvenience it has caused, and such, if any, as it will cause him in the future, the extent, if any, to which it has diminished his earning capacity, and the extent, if any, to which it has affected his ability to play the piano or engage in other pastimes."

The particular part of the charge complained of is the following: "The extent, if any, to which it has diminished his earning capacity." Complaint is made that, there being no proof of manumission and the plaintiff not being entitled to his earnings during minority, the jury under this charge was

Ladwig v. Jefferson Ice Co. 141 Wis. 191.

liable to award damages on account of loss of earning capacity during minority. But the charge was correct so far as the earning capacity was concerned after manumission or majority. So it cannot be said that the charge was incorrect as far as it went, and if the defendant required a more specific charge upon the subject it should have requested it, which it failed to do. In view of the whole record we cannot say that defendant was prejudiced by the charge complained of. We find no prejudicial error in the record, therefore the judgment must be affirmed.

By the Court.-The judgment of the court below is affirmed.

LADWIG, Respondent, vs. JEFFERSON ICE COMPANY, Appel

lant.

November 13, 1909-January 11, 1910.

(1, 2) Expert testimony: Weight: Competency. (3-5) Master and servant: Negligence: Injury to servant: Mode of work: Simple appliances: Assumption of risk.

1. The opinions of experts, so far as they clash with common knowledge or ordinary observation of simple implements, should not be given weight or credence.

2. Expert testimony directed to ordinary phenomena easily observable by any one of ordinary intelligence is unnecessary and improper.

3. It is not negligence upon the part of the master to lay out a particular mode of doing his work or to furnish particular appliances therefor, where neither such mode nor such appliances are inherently or latently dangerous.

4. When the servant, knowing of such mode and of such appliances, enters and continues in the service, he assumes the ordinary risks thereof arising from such mode which he knows by ordinary observation, and from such appliances which are simple in their construction and not worn out, broken, or defective. 5. Thus, the risk of injury through the falling of a bracket and the scaffold supported thereby upon which he was working was as