#### Budny, by guardian *ad litem,*Appellant, vs. American Candy Company, Respondent.

*November 1*

November *19, 1912.*

*Master and servant: Injury to boy from machinery: Knowledge of danger: Instruction and warning: Negligence.*

In an action for injury to a boy under fifteen years of age, employed in defendant’s candy factory, whose hand was caught between the rolls of a candy machine, the evidence is *held*to show, contrary to findings by the jury, that the boy was fully informed of the danger and that there was no negligence on the part of the defendant in failing to instruct and warn him.

Appeal from a judgment of tbe circuit court for Milwaukee county: E. C. Eschweiler, Circuit Judge.

*Affirmed.*

Tbe plaintiff suffered tbe loss of three fingers and tbe partial loss, of a fourth finger on bis left band on a cough drop, machine while be was working for tbe defendant, and brings this action by bis guardian *ad -litem*to recover damages for tbe injuries.

Tbe cough drop machine consists principally of two .brass rollers between seven and eight inches long and four inches in diameter. There are oblong indentations on tbe surfaces of both rollers, which meet as the rollers revolve close to one another and shape the candy as it runs between the rollers into drops. The rollers are a small fraction of an inch apart, and the drops as they come from the machine are connected by a thin sheet of candy which is formed between the *rollers.*The rollers are held in a frame, and the gearing causing the revolution of the rollers is driven by a pulley and belt, which in the present instance were electrically propelled and caused the rollers to revolve sixty to eighty times a minute. The machine was placed near the edge and about the middle of a wide table about sixteen feet long. The hot candy is fed from the heating table up an incline and between the rollers on the *262side of the machine on which the rollers converge as they revolve. An air pipe ran up from the edge of the table alongside of the rollers and from this an arm or small spout extended out over the top roller. The air from this spout, which opened about three inches above the top roller, was blown onto the roller to cool it and the candy as it came from the machine, thus preventing a sticking of the candy to the roller.

On the day before the accident the plaintiff went to work for the defendant and was put at work with another new boy by the foreman of the defendant. Plaintiff’s duty was to receive the candy as it came from the machine and with a stick break the sheet of candy so that the drops would be separated, and then to push the candy along the table to be handled by other employees. The roller could not be kept sufficiently cool and the candy would stick to the rollers. At times grease or starch would he placed on the rollers to prevent the candy sticking to them. At other times the feeding of the hot candy would be stopped and a board about four inches wide would be placed on the incline, over which the candy was fed into the machine and held in position by a monkey wrench, and the air spout would be so turned that the air current would strike the board and be forced between the rollers to cool them. This might happen eight or ten times a day.

The plaintiff testified that about 10:30 o’clock on the morning of September 13, 1910, the second day he was working for the defendant, the supply of candy was exhausted and he sat down near the machine, and that George Diedrich, the workman who fed the candy into the machine, while passing by, told him to turn the air on the machine; that he went to the side of the machine at which he had been working and with his left hand took hold of the spout to move it as he had been directed; that the spout moved more easily than he expected; and that his hand slipped over the top of the roller and his fingers were caught between the rollers and crushed *263and injured. He also stated that neither tbe defendant’s foreman nor George Diedricb, bis superior, bad given bim any warning or instruction as to tbe danger of getting bis band between tbe moving rollers.

George Diedricb, tbe candy maker, testified that be bad not directed the plaintiff to turn on tbe air. He also testified that on tbe previous day be bad caught tbe plaintiff in tbe morning fooling with tbe machine and that be gave bim instructions that be was not to touch tbe machine; and that be found tbe air turned off by a damper in tbe blow pipe, and that be then told tbe plaintiff that be wanted tbe air on and be himself opened it again. He testified that in tbe afternoon be caught tbe plaintiff running bis bands on tbe rollers, and that just previous to tbe time of tbe accident be bad adjusted tbe board and monkey wrench and tbe air spout so as to cool both rollers.

Tbe foreman for tbe defendant, who bad charge of tbe stock candy room and who bad put tbe plaintiff at work when be started on tbe day before tbe accident, testified that be told both of tbe boys who came to work at that time that they should work for Mr. Diedricb and do what be told them, and that be showed them at tbe start what they were to do. He also testified that at tbe time of tbe accident be beard a call, that be went to tbe plaintiff, who bad just been released from tbe machine, took him to a sink about twenty or twenty-five feet away, and that tbe plaintiff, in reply to a question of bow tbe accident happened, said in a crying way that be was playing with tbe wind.

Tbe boy who went to work for tbe defendant at tbe same time as the plaintiff stated that when they first went to work George Diedrich told bim and tbe plaintiff to stay away from tbe machine and not to touch it, and that about an hour af-terwards be beard Diedricb tell the plaintiff not to monkey with tbe machine.

Walter Comdohr, tbe person who stopped the machine and *264released tbe plaintiff, testified tbat be found tbe board and monkey wrencb on. tbe machine, at tbe time of tbe accident, adjusted as Diedricb testified be bad left tbem. One of tbe girls wbo was working-at tbe table with tbe plaintiff testified that tbe foreman bad told tbe plaintiff to be careful about tbe rollers.

Tbe plaintiff, called as an -adverse witness, testified as follows:

“Q. You have seen a clothes wringer, haven’t yon? *A.*Yes, sir. *Q.*And you know bow they work? *A.*Yes, sir. *Q.*You knew, didn’t you, tbat if you got your finger in between these rolls on tbe side where tbe candy was fed in tbat they would get drawn in there ? *A.*Yes, sir. *Q.*You could see tbat? *A.*I couldn’t see it, but I knew it. *Q.*You knew tbat was what would happen? *A.*Yes, sir. *Q.*You knew from looking at tbe side of tbe machine at which you worked tbat tbe opening on tbe other side was exactly opposite, it was exactly opposite the place where tbe rolls separate. That is, tbe side where anything was fed in was exactly opposite tbe side where anything was fed out. You knew tbat, didn’t you? *A.*Yes, sir.”

Tbe jury returned a special verdict finding tbat tbe danger of getting bis fingers caught in tbe rollers was not so obvious tbat tbe plaintiff, considering bis age, intelligence, and experience, should have known and appreciated it; tbat tbe defendant failed to give tbe plaintiff such warning dr instruction before tbe injury as would enable a person of bis age and experience, exercising due care, to appreciate such danger; that such failure was tbe proximate cause of tbe injury; that tbe plaintiff was directed by Gfeorge Diedricb to shift, tbe air blower just before tbe accident; and tbat no lack of ordinary care on tbe part of the plaintiff proximately contributed to bis injuries.

Tbe court granted defendant’s motion to change tbe answer to one of tbe questions of tbe special verdict, by which tbe jury found tbat tbe plaintiff was directed by George Died-*265rich to shift tbe air blower just before the accident, and found tbis issue in tbe negative, and also granted defendant’s motion to dismiss tbe complaint. Tbis is an appeal from tbe judgment so ordered.

Eor tbe appellant there was a brief by *W. B. Rubin,*attorney, and *Wallace Ingalls*and *A. W. Foster,*of counsel, and oral argument by *Mr. Ingalls.*

Eor tbe respondent there was a brief by *Lawrence A. 01-well,*attorney and of counsel, and *Burr J. Bcott,*of counsel, and oral argument by *Mr. OlwelL*

Siebecker, J.

Tbe jury found that tbe plaintiff, a boy fourteen years and seven months of age at tbe time of tbe accident, in tbe light of bis age, intelligence, and experience did not know or appreciate, and ought not to have known and appreciated, tbe danger of getting bis fingers caught in tbe rollers, and that defendant was negligent in not warning and instructing him of tbis danger so as to enable him to have understood and appreciated it. Tbe duty of warning a servant of dangers does not apply to a servant who is familiar with tbe work and the tools and appliances, and does not apply when tbe dangers are well known to tbe servant and when they are such as be is fully capable of appreciating. This rule is elementary and has received numerous applications in tbe decisions of this court, of which the following may be cited: *Rahles v. J. Thompson & Sons Mfg. Co.*137 Wis. 506, 118 N. W. 350, 119 N. W. 289; *Dahlke v. Ill. S. Co.*100 Wis. 431, 76 N. W. 362; *Wagner v. Plano Mfg. Co.*110 Wis. 48, 85 N. W. 643.

Tn the foregoing statement, tbe evidentiary facts as to plaintiff’s knowledge of tbe alleged danger and also defendant’s want of care are presented. There can be but one rational inference drawn therefrom as respects these two questions, which is that tbe plaintiff was fully informed of tbe alleged danger of bis employment, and hence that warning *266and instruction to.inform him thereof so that be might appreciate the attendant hazard were not required to be given to him. A study of the facts convinces us that the evidence fails to show that the defendant was guilty of any want of care which proximately caused plaintiff’s injury, and that the jury’s finding that defendant negligently omitted to give plaintiff needed instruction and warning is not supported by the evidence. The evidence is within so narrow a compass and so directly to the point that discussion of it as to its probative effect and force can afford no assistance in drawing the legitimate inferences therefrom. We are constrained to hold that the evidence fails to show a cause of action against the defendant upon the grounds alleged, and the judgment dismissing the complaint must stand.

*By the Court.*— Judgment affirmed.