#### Szewczyk, by guardian *ad litem,*Respondent, vs. E. W. Ellis Lumber Company, Appellant.

*May 4*—

June *1, 1911.*

*Master and servant: Unsafe machinery: Negligence: Several grounds: Proximate cause: Special verdict: Sufficiency: Form: Instructions to jury: Questions for jury: Assumption of rish: Witnesses: Interest in event: Appeal: Harmless errors.*

1. On appeal from a judgment for the plaintiff in an action for personal injuries, where the jury by special verdict have found the defendant negligent upon'four separate grounds, and that each operated as a proximate cause of the injury, if either ground of negligence is sustained by the record as a proximate cause of such injury it is immaterial whether the other grounds are sustained or not.

2. Where plaintiff and two witnesses testified that at the time of the accident there was no guard over a pedal which operated the jump saw by which plaintiff was injured, while seven witnesses for defendant positively declared from personal knowledge that there was a guard there at that time, such as was shown in an exhibit, and the jury found in favor of plaintiff upon that issue, this court on appeal refuses to disturb such finding as not being supported by credible evidence.

3. The controversy being as to the existence of any guard at all over the pedal at the time of the accident, it was not error for the trial court to refuse to submit a specific question asking whether or not the particular kind of guard shown in the exhibit was then in use, and to submit instead the general question: “Did the defendant negligently fail at the time of plaintiff’s injury to have a safe and sufficient guard over the pedal in question?” Such general question, in view of the evidence and of the instructions to the jury, specifically and clearly submitted the issue.

4. Correct instructions having been given, in connection with previous questions in the special verdict, upon the subjects of negligence, proximate cause, and plaintiff’s knowledge and appreciation of the precise danger attending his employment, there was no error in directing the jury to apply the same rules in answering subsequent questions in the verdict involving those *453subjects, instead of giving, as requested, similar or equivalent instructions in connection witb each, of such subsequent questions.

5. Plaintiff, who was nineteen years of age and inexperienced in the work which he was set to do, having been injured while operating a jump saw, by reason of slabs, which were brought to the saw by live rollers, accumulating on the table and falling therefrom upon the pedal which forced the jump saw upward, and it appearing that such accumulation of slabs did not ordinarily occur in the operation of the machine, but was an unusual condition, the danger of injury therefrom cannot be said, as a matter of law, to have been so open and obvious that plaintiff assumed the risk.

■6. Plaintiff’s testimony as to the absence of a guard over the pedal being corroborated by two witnesses, and the circumstances tending to show that the pedal was depressed by slabs falling upon it and that it would not have been so depressed had there been such a guard, it cannot be said that a decision for the plaintiff depended so largely upon the weight to be given to his own testimony that the omission of the trial court to instruct the jury as to the effect of his interest upon such weight resulted in the verdict in his favor; and the error in refusing to give such an instruction is therefore, under see. 2829, Stats. (1898), and sec. 3072m (Laws of 1909, ch. 192), to be disregarded. Babnes, J., dissents.

Appeai, from a judgment of the circuit court for Wood ■county: Chas. M. Webb, Circuit Judge.

*Ajjiryned.*

This is an action to recover damages for personal injuries received by the plaintiff, a minor employed in the defendant’s mill. The plaintiff commenced working for the defendant on EriSay, May 7, 1909. On Monday, May 10th, he was put át cutting slabs and other small pieces of wood into shorter lengths on a jump saw. The operator of the jump saw places his foot upon a pedal, the revolving cross-cut saw is thereby caused to rise through a slit in the table of the machine, and it cuts the wood placed over the slit. The plaintiff was nineteen years of age. He had never before worked a jump' saw. He was shown how to operate the saw, but was not warned of any dangers arising from operating it.

*454Between 9 and 10 o’clock in tbe morning tbe foreman ordered tbe plaintiff to cnt up some tbin bos material, called packing, while continning to cnt tbe slabs. It was necessary for tbe operator to pull tbe packing diagonally across tbe jump-saw table, to arrange it as best be could, and to saw it when tbe supply of slabs was small. Tbe slabs were carried to tbe table on live rollers, and at times aceumnlated to sucb an extent that some fell from tbe table. While tbe plaintiff was drawing some packing across tbe table several pieces of tbe accumulated slabs fell from tbe table, and one or more fell upon tbe pedal which operated tbe saw, causing it to rise and sever tbe fourth finger from plaintiff’s right band.

Tbe complaint alleges negligence in that tbe pedal was not guarded; in that tbe saw. was not sufficiently protected; in that tbe defendant failed to furnish sufficient workmen to conduct the operation of this saw with reasonable safety; in that tbe live rollers conveying tbe slabs to tbe operator delivered sucb slabs too near tbe saw, causing them to accumulate and to fall onto tbe pedal and thereby starting tbe saw; and in that tbe defendant failed to warn tbe plaintiff of tbe dangers attending tbe operation of tbe jump. saw.

There was conflicting evidence on tbe trial as to whether or not there was a guard over tbe pedal; tbe plaintiff and two former employees of tbe defendant testifying that there was no guard over tbe pedal, while seven employees of tbe defendant testified that there was sucb a guard at tbe time of tbe accident and that it bad been there for some time before. Tbe plaintiff testified that be was not informed of tbe danger and did not appreciate it before tbe accident.

There was evidence that the *plaintiff*saw slabs fall from tbe jump-saw table onto tbe floor near tbe pedal operating tbe saw and that be bad picked such slabs from tbe floor. There was evidence also that, in tbe ordinary and usual course of handling tbe slabs carried onto the table of the jump saw, tbe *455slabs would not accumulate upon tbe table to sucb an extent tbat some would fall to tbe floor, but tbe operator would bave time to receive and handle tbem and tbus avoid tbeir accumulating. Tbe jury returned tbe following special verdict:

“(1) Did defendant negligently fail at tbe time of tbe plaintiff’s injury to bave a safe and sufficient guard over tbe jump saw in question ? A. Yes.

“(2) If you answer question No. 1 ‘Yes,’ then was sucb negligence a proximate cause of plaintiff’s injury? *A.*Yes.

“(3) If you answer question No. 1 ‘Yes,’ then did plaintiff at tbe time of bis injury understand and appreciate tbe precise danger to wbicb be was exposed by tbe absence of said guard ? *A.*No.

“(4) Did tbe defendant'negligently fail at tbe time of plaintiff’s injury to bave a safe and sufficient guard over tbe pedal in question ? *A.*Yes.

“(5) If you answer question No. 4 ‘Yes,’ then was sucb negligence a proximate cause of plaintiff’s injury ? *A.*Yes.

“(6) If you answer question No. 4 ‘Yes,’ then did plaintiff at tbe time of tbe accident know of and appreciate tbe precise danger to wbicb he was exposed by tbe absence of said guard ? *A.*No.

“(J) Did tbe defendant negligently fail to warn plaintiff of tbe dangers incident to tbe operation of said jump saw? *A.*Yes.

“(8) If you answer question No. 7 ‘Yes,’ then was sucb failure to so warn said plaintiff a proximate cause of bis injury? *A.*Yes.

“(9) Did the defendant negligently fail to employ enough persons to do tbe work plaintiff was required to do by tbe defendant on said jump saw with safety to plaintiff? *A.*Yes.

“(10) If you answer question No. 9 ‘Yes,’ then was sucb failure to employ enough persons a proximate cause of plaintiff’s injury? *A.*Yes.

“(11) Did plaintiff in any respect fail to exercise ordinary care which proximately caused or contributed to produce his injury? *A.*No.

“(3.2) What sum of money will justly compensate tbe plaintiff for bis said injuries ? *A.*$500.”

*456Before tbe special verdict was submitted to tbe jury tbe defendant requested that tbe following question be submitted instead of question No. 4:

“(4) Was tbe pedal in question protected at tbe time of plaintiff’s injury by tbe guard M as shown on Exhibit 0 ?”

Tbe defendant also requested tbe following instructions, but tbe court refused to give them:

“As to question No. 4. Tbe plaintiff in this action is an interested party, and in considering tbe weight which should be given to bis testimony you should consider tbe fact of such interest, and tbe motive which be has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to tbe evidence of any other interested witness.

“As to question No. 4. You are instructed that there is no dispute that tbe guard marked M on Exhibit C, if such guard was over said pedal, is a safe and sufficient guard. .

“As to question No. 4. If you find that any witness has wilfully testified falsely as to any material fact, you are at liberty to disregard all the credible testimony of such witness, except as it may be corroborated by other credible evidence in tbe case.

“As to question No. 1 defendant asks tbe court to answer said question-‘No’ or to instruct tbe jury to answer said question ‘No.’

“As to question No. 2 defendant asks tbe court to answer said question ‘Yes,’ or to instruct the jury to answer said question ‘Yes,’ and in tbe event of a refusal so to do, to instruct tbe jury it is not necessary in order to answer question No. 3 ‘Yes’ to find that plaintiff actually understood and appreciated tbe precise danger; but if you find that tbe plaintiff, in tbe exercise of such care as a person of bis age and experience ordinarily exercises under tbe same or similar circumstances, ought to have understood and appreciated tbe precise danger to which be was exposed by tbe absence of said guard, then you should answer question No. 3 ‘Yes.’

“As to question No. 5 you gentlemen of tbe jury are instructed that, in order to find that tbe absence of said guard was tbe proximate cause of plaintiff’s injury, you must find *457that the defendant in the exercise of ordinary care ought to have foreseen that an injury was likely to result from the absence of said guard.

“As to question No. 6 defendant asks that the court answer ■said question ‘Yes/ or that the court instruct the jury to so answer said question ‘Yes/ and in the event of a refusal to so answer said question or to so instruct the jury, then to instruct the jury as follows: You are instructed that in order to answer question No. 6 ‘Yes’ it is not necessary for you to find that the plaintiff actually or in fact knew of or appreciated the precise danger to which he was exposed by the absence of said guard. If you find that the plaintiff, in the exercise of ■such care as a person of his age and experience ordinarily exercises under the same or similar circumstances, should have known of and appreciated said danger, then you should answer said question No. 6 ‘Yes.’

“The plaintiff is presumed to be possessed of the usual faculties ordinarily developed in a boy of his age and size. He is presumed to be a person of common sense for one of his .years.

“As to question No. 7 defendant asks that the court answer said question ‘No/ or that the court instruct the jury to answer said question ‘No,’ and in the event of refusal to so answer said question or so instruct the jury, then to instruct the jury as follows: The defendant had a right to assume that the plaintiff was possessed of the usual faculties ordinarily developed in a boy of his age and size; in other words, that he was a person of common sense for one of his years, and that he would exercise such care to avoid dangers which were visible and which he knew or ought to have known existed, as might be reasonably expected of one of his years and capacity.

“Ah to question No. 8 defendant asks that the court answer said question ‘No/ or that the court instruct the jury to answer said question ‘No.’

“As to question No. 9 defendant asks that the court answer said question ‘No’ or that the court instruct the jury to an.swer said question ‘No.’

“As to question No. 10 defendant asks that the court answer said question ‘No’ or that the court instruct the jury to answer said question ‘No/ and in the event of failure to so answer ■said question to so instruct the jury that the jury be instructed: *458You are instructed, gentlemen of the jury, that unless you find! that the defendant in the exercise of ordinary care ought to, have foreseen that some injury was likely to result to the plaintiff from failure to employ more persons at the work in which plaintiff was engaged, then you should answer question No. 10 No.’

“As to question No. 11 defendant requests that the court answer said, question No. 11 ‘Yes,’ or instruct the jury to SO' answer said question ‘Yes.’ ”

The court awarded the plaintiff a judgment on the verdict. This is an appeal from such judgment.

For the appellant there was a brief by *Qoggins & B'razeauj.*and oral argument by *Theo. W. Brazeau.*

For the respondent there was a brief by ,W. *B. Wheelan,*attorney, and *Kreutzer, Bird, Bosenberry & Olconeslci,*of counsel, and oral argument by O. *B. Bird.*

SiebeceeR., J.

The jury returned a special verdict finding that the defendant was guilty of negligence in four respects,, and that each ground of negligence operated as a proximate cause to produce the injury complained of. If, under such a state of facts, either ground of negligence is sustained by the record as a proximate cause of the injury, then it is immaterial whether the other grounds are sustained or not. It appears that the charge of defendant’s negligence mainly relied on by the plaintiff and litigated at the trial was the question, of whether or not the defendant properly guarded the pedal near the floor, by which the saw was started. It is contended that the evidence is insufficient to warrant the jury in finding that there was no guard over this pedal. There is no dispute but that the presence of a guard over this pedal, of the kind described by the witnesses, would have been a protection against the danger of which plaintiff complains. The inquiry then is: Does the evidence justify the jury in its conclusion that no such guard was in fact furnished by the defendant ? Upon this subject the evidence is irreconcilably in conflict. *459The plaintiff and two witnesses testified that there was no» guard over this pedal at the time of the accident, while seven witnesses produced by the defendant positively declared from personal knowledge that there was such a guard over the pedal at the time. Tinder the circumstances we cannot say that the-jury were not authorized to accept the statement of the plaintiff and the two witnesses corroborating him, as against those testifying to the contrary. The evidence sustaining the finding is not so overwhelmingly impeached as to enable us to declare that the verdict on this issue is not supported by credible-evidence.

It is contended that the court erred by refusing to incorporate the following question in the special verdict, namely r “Was the pedal in question protected at the time of plaintiff’s injury by the guard M as shown on Exhibit C ?” The court submitted the following question on this issue: “Did the defendant negligently fail at the time of plaintiff’s injury to-have a safe and sufficient guard over the pedal in question?”' As heretofore stated, the plaintiff and two corroborating witnesses testified that there was no guard whatsoever over this pedal, while the defendant’s witnesses all testified to the presence of a guard as indicated on Exhibit 0, which was in evidence and shown to the jury. In the light of this- conflict in the evidence and the court’s instructions to the jury respecting this question, so- submitted in place of the one requested, it is apparent that the question submitted on this issue embraced the same facts and circumstances as the one requested, and the jury’s attention was specifically directed to such issue of the facts under the pleadings. The court plainly informed the jury that the plaintiff claimed that no guard whatever was provided and that the defendant’s -evidence, if credible, “tends-to prove that the pedal was in fact provided, with and protected by a complete, safe, and sufficient guard before and at the time of the accident.” In view of this direction, the ground of complaint to the -effect that the issue of fact as to-. *460■this branch of the case was not specifically and clearly submitted to the jury by the special verdict is not sustained. The words of the instruction and of the question submitted, namely, “safe and sufficient guard,” could not operate to confuse or to divert the jury’s attention from the actual issue involved in the answer to this question. The question on this •subject in the verdict is equivalent to the requested question, in the light of the evidence and the directions given to the jury to guide them in their deliberations thereon. The verdict meets the calls of the special-verdict statute, sec. 2858, Stats. (1898), as amended (Supp. 1906: Laws of 1903, ch. 90), as interpreted in the recent cases of *Rowley v. C., M. & St. P. R. Co.*135 Wis. 208, 115 N. W. 865; *Harper v.*Holcomb, ante, p. 183, 130 N. W. 1128; and *Wawrzyniakowski v. Hoffman*& *B. Mfg. Co.,*ante, p. 153, 131 N. W. 129.

It is further contended that the court erred in refusing to .give the requested instruction as to question No. 5 of the verdict, namely, “that, in order to find that the absence of said guard was the proximate cause of the plaintiff’s injury, you [the jury] must find that the defendant in the exercise of ordinary care ought to have foreseen that an injury was likely to result from the absence of said guard.” The court had correctly instructed the jury upon the subjects of negligence •and proximate cause, in connection with questions preceding the one on which the foregoing instruction was requested, and had directed the jury to such instructions as embodying the rule to guide them in answering this question. We do not deem this practice to be misleading to the jury. Men of ordinary intelligence would comprehend such an instruction and be properly informed .by the charge given of the rules embodied in the instruction which was refused.

An exception is urged to the refusal to instruct as requested pertaining to the issue -embraced in question No. 6, respecting plaintiff’s appreciation of “the precise danger to which he was *461exposed by the absence of said guard.” The requested instruction is:

> “You are instructed that in order to answer question No. 6 ‘Yes’ it is not necessary for you to find that the plaintiff actually or in fact know of or appreciated the precise danger to which he was exposed by the absence of said guard. If you find that the plaintiff, in the exercise of such care as a person of his age and experience ordinarily exercises under the same or similar circumstances, should have known of and appreciated said danger, then you should answer said question No. 6 ‘Yes.’ ”

The court informed the jury in his instructions in connection with question No. 3 as follows: /

> “The plaintiff was in duty bound to exercise such care and judgment as an ordinary person of his age, intelligence, and experience would ordinarily use under the same or like circumstances ; and if in all the circumstances in which he was placed, including his age, intelligence, and experience, he ought in the exercise of ordinary care to have known and appreciated the precise danger attending his said employment, he will be held to have understood and appreciated such danger.”

The jury were directed in their deliberations to apply this rule to question No. 6. This instruction embraces the law as stated in the rejected request on the issue embraced in this question and was properly brought to the attention of the jury in the manner followed by the court.

It is urged that the plaintiff assumed the risk resulting from the absence of a guard over the pedal, as alleged, for the reason that the danger of injury resulting therefrom in the performance of his duties was open and obvious. It is manifest that the absence of a guard over the pedal would be likely to start the jump saw whenever any substantial weight or force was brought to bear on the pedal, but it is not so clear that the plaintiff or any person of his age and experience operating the saw would obviously be informed of the danger of *462materials falling from tbe adjacent table onto tbe pedal. True, tbe plaintiff states that be bad observed slabs fall from ■the table onto tbe floor near tbe pedal before tbe accident happened. It cannot, under tbe circumstances, be held that this .condition of affairs was a constant factor of danger in operating tbe saw. In fact, tbe operation of tbe saw was conducted upon tbe theory that such a condition of danger would not exist, because, ordinarily, tbe slabs would be bandied without their so accumulating as to* fall to the floor, and the accumulation was an unusual condition in tbe usual course of tbe performance of plaintiff’s duties. Under such circumstances it cannot be said that this danger was of such a character as to be obviously known to tbe operator of tbe jump saw while performing bis duties as tbe business was being conducted. Tbe court properly submitted tbe question to tbe jury.

Tbe court rejected this request to instruct: “The plaintiff in this action is an interested party, and in considering tbe weight which should be given to> bis testimony you should consider tbe fact of such interest, and tbe motive which be has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to tbe evidence of any •other interested witness.” Tbe charge of tbe court does not contain its equivalent in words, nor was tbe jury’s attention specifically brought to tbe subject of tbe weight of this evidence. In *Blankavag v. Badger B. & L. Co.*136 Wis. 380, 117 N. W. 852, tbe refusal of this instruction was declared to be prejudicial error, tbe court stating: “Where a decision in a party’s favor depends largely upon tbe weight to be given to his own evidence, and a request to give such an instruction as above is made, it is error to refuse it where tbe principle ■embodied in such instruction is not covered by tbe charge.” Tbe inquiry arises: Was it error in tbe instant case? Does tbe favorable verdict for tbe plaintiff depend largely upon tbe weight to be given bis evidence? We are persuaded that *463tbe record does not present sucb a ease. The questions litigated to which this instruction would have peculiar application were the issues as to whether or not there was a guard •over the pedal and as to plaintiff’s knowledge of the danger from the absence of the guard as bearing on the assumption •of risk. But we find that the plaintiff’s evidence was corroborated by two witnesses as regards the absence of the guard over the pedal. They gave direct evidénce that there was no such guard. Moreover, the circumstances of the transaction tend to show that the pedal was depressed by slabs falling upon it and that it could not have been depressed had there been such a guard. Plaintiff’s relation to and knowledge of the danger from falling slabs has heretofore been adverted to as insufficient to impute the assumption of such'risk. Under the facts and circumstances of the case it cannot be said that a decision in plaintiff’s favor depended so largely upon the weight to be given to his evidence that this omission to instruct resulted in this verdict. In the light of the situation the refusal to instruct as requested presents an error which is within the provision of see. 2829, Stats. (1898), and is to be disregarded. This policy of the law has by recent legislative enactment become firmly intrenched in the law by the enactment of sec. *S0fI2')n,*Stats. (Laws of 1909, eh. 192), declaring that such errors shall not be deemed to operate preju-dicially, “unless in the opinion of the court . . . after an examination of the entire action ... it shall appear that the error complained of has affected the substantial rights of the party” seeking relief on account thereof. After an examination of the entire action we do not consider that the appellant’s substantial rights have been affected by this error.

As heretofore stated, the jury found the defendant negligent in several separate respects. We find the verdict sustained upon the grounds of liability embraced in questions No. 4, No. 5, and No. 6, and that the plaintiff was free from •contributory negligence. This is sufficient to sustain the *464judgment, and hence the errors argued as to other alleged' grounds of negligence found by the jury need not be considered. The judgment must therefore stand.

*By the Court.*— Judgment affirmed.

Bauiues, J.

(dissenting). Plaintiff testified that the pedal1 was not guarded at the time of the accident. So did Stain-brook and Baker, two of his boy chums who at the time of the trial had been discharged from defendant’s employ. Baker made a sworn statement after the accident to the effect that he did not know whether the pedal was guarded or not, and to this extent his testimony was impeached. Seven apparently credible witnesses testified on the trial that the" pedal was guarded at the time of the injury. It is obvious that the evidence strongly preponderated in favor of defendant’s contention. Indeed, the able counsel for the appellant argue in all sincerity that the finding of the jury to the effect that a guard was not supplied is not sustained by the testimony.

Question 4 of the special verdict was as follows:

> “Did the defendant negligently fail at the time of plaintiff’s injury to have a safe and sufficient guard over the pedal in question ?”

The defendant requested the court to charge the jury in reference to said question as follows:

> “The plaintiff in this action is an interested party, and in considering the weight which should be given to his testimony you should consider the fact of such interest and the motive which he has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to the evidence of any other interested witness.”

This charge was refused and no substitute therefor was given. The instruction was correct as a proposition of law. Under the facts in the case it was a peculiaidy appropriate instruction to give. This court has lately held twice that a refusal to give this instruction was prejudicial and reversible *465error. *Kavanaugh v.*Wausau, 120 Wis. 611, 98 N. W. 550; *Blankavag v. Badger B. & L. Co.*136 Wis. 380, 386, 117 N. W. 852. Both of these cases were decided before the passage of see. 3072m, Stats. (Laws of 1909, eh. 192). Sec. 2829, Stats. (1898), was in force when the cases were decided, and required this court to disregard errors that did not affect the substantial rights of the adverse party. Sec. 3072m prohibits a reversal unless after an examination of the entire action it shall appear that the error has affected the “substantial rights” of the party seeking to reverse the judgment. There is very little difference between the two statutes as ap plied to the facts in the present case. In most of the cases tried in our courts either one or both of the parties is a witness, and very often a party is the principal or the only witness in his own behalf. The rule of law requiring an instruction to be given such as that requested in this ease is an important and a valuable one in close cases and the final result may often depend on whether it is given or not. It is seldom that a ease will arise which more clearly calls for the giving of such an instruction than the one before us. I regard this decision as holding in effect that hereafter no error will result from refusing to give such a charge as was here refused, unless perchance a more extreme case might arise, which is not very likely. I am not prepared to go to this extent. Since sec. 3072m has been in force it has been held to be reversible error to give an erroneous charge on the burden of proof. *Schumacher v. Tuttle P. Co.*142 Wis. 631, 638, 639, 126 N. W. 46. In my way of thinking, the error in the case cited was no more calculated to work prejudice than was the error in the present case.