#### Horn, by guardian *ad*litem, Appellant, vs. La Crosse Box Company and another, Respondents.

*March 23*—

April *9, 1907.*

*Appeal: Questions decided on former appeal: Master and servant: Injury to servant: Contributory negligence: Court and jury: Assumption of rislc: Instructions to jury: Special verdict: Consistency of answers.*

1. The decision of a question on appeal is conclusive of the same matter when again presented in the same case upon the same or substantially the same evidence.

2. A decision on a former appeal that plaintiff, against whom a verdict had been directed on the ground that the evidence showed his contributory negligence'as matter of law, was entitled to have that question submitted to the jury, is *held*to be eon- , elusive of defendant’s right to have that question so submitted on a second trial upon substantially the same evidence.

3. Plaintiff, a boy fifteen years old, substantially a man grown, and intelligent for his years, was injured by the revolving knives of a planing machine in defendants’ mill while attempting to clean out a hopper under the knives. *Meld,*that the jury were properly instructed that if plaintiff knew that there was a rapidly revolving knife or knives at the edge of the hopper and that his hand was liable to come in contact therewith in attempting to take hold of the hopper, he must be held to have appreciated the danger and assumed the risk in attempting to do the work, although by express direction of the defendants; that the true test as to whether a minor has assumed the ordinary risks of his employment or is guilty of contributory negligence is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger; and that defendants had a right to assume that the plaintiff was a person of ordinary 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.

4. Such instructions, being given with reference to a question submitted for special verdict covering the matter of plaintiff’s contributory negligence or assumption of the risk, were not objectionable as informing the jury of the effect of their answer to the question.

*3855. A finding that plaintiff was guilty of contributory negligence was not inconsistent with a finding that when he attempted to clean out the hopper he did not know of the revolving knives which were liable to come in contact with his hand. Taken together, such findings indicate that the jury decided that, under the circumstances, plaintiff ought to have known and comprehended the danger.

Appeal from a judgment of the circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.

*Affirmed.*

Action to recover for a personal injury.

Plaintiff, a hoy of fifteen years of age, in the employ of the defendants, engaged in cleaning out a hopper that was choked with sawdust and chips, located under the revolving knives of a planer, lost one of his hands by its coming in contact with such knives. There was evidence tending to show the following: Plaintiff was substantially man-grown, weighing 150 pounds, and quite intelligent for one of his years, but he had very little experience with machinery, particularly with planing machinery. He was set to work at a planing machine without having been instructed as to the perils incident to the work. He worked, prior to the time he was injured, in defendants’ factory for about twenty-three days. A portion of the time each day he was employed at the planer taking away lumber.

One of the principal issues litigated was with reference to whether the plaintiff was guilty of contributory negligence. On a former trial of the action a verdict was directed in favor of the defendants upon the ground that the evidence showed contributory negligence on plaintiff’s part as a matter of law. Upon appeal from the judgment it was reversed, the court holding that whether plaintiff was so guilty or not was a jury question, and that the trial court should have submitted the cause accordingly. The plaintiff testified that he did not know of the revolving knives, or of the interior mechanism of the machine, or that when the rolls stopped the knives would continue for some time to revolve. There was evidence to this *386effect: Plaintiff liad, not on any previous occasion cleaned out the hopper. He was directed to do tire work on the occasion in question 'without any warning of the peril of undertaking the task before the knives stopped,revolving. They revolved within a little over an inch of the edge of the hopper, and when it was necessary to clean out the hoppér the course ordinarily pursued was to stop the machine, waiting till the knives ceased revolving before undertaking to remove the contents of the hopper. The act acquired to stop the machine was to release the tightener resting on the driving belt. That would cause the feed rolls to stop at once, but the knives would continue to revolve for some little time. On the occasion in question plaintiff upon being directed to clean out the hopper released the tightener on the driving belt, thereby stopping the feed rolls and the further communication of motive power to the knives, but without waiting for them to stop revolving by their own momentum he lifted the table of the planer, got down under it and attempted to take hold of the edge of the hopper, when his hand was caught by the knives. The planer was of the ordinary kind. It was equipped with a hood over the knives and one under them with connections to carry away the shavings. The plaintiff had seen the hopper cleaned out on several occasions, though he had not theretofore done it himself. He had observed a buzzing sound when the machine was in operation planing lumber. He had observed that the hoards were put into the machine on one side in the rough and came out on the other planed, and knew that something, during their passage through the machine, took off the shavings. He had seen knives which he understood belonged to the planer. He knew that some sharp instrument in the inside of the planer took off shavings from the boards as before indicated. He had often seen the platform of the planer raised up and the under hopper cleaned out. The knives on the machine were frequently filed and changed, at which time they were exposed to’ view and plaintiff was often where he could *387readily bave seen them. A person stationed as be was in talc-ing away lumber from tbe planer could bave seen tbe knives revolve for- some little time after tbe tightener on tbe driving belt was removed so as to stop the machine. Tbe evidence as a whole, as counsel for appellant conceded on tbe argument, was quite as strong in defendants’ favor on tbe subject of contributory negligence as on tbe former trial. There was a special verdict rendered, tbe jury finding all of tbe issues in favor of tbe plaintiff, except that in respect to whether be was guilty of contributory negligence. On that in answer to-tbe second question in tbe verdict tbe jury decided that at tbe time plaintiff attempted, to clean out the hopper be did not know of tbe revolving knives, which were liable to come in contact with bis band if be attempted to take bold of tbe edge of tbe hopper before they stopped revolving, and in answer to tbe fifth question in tbe verdict tbe jury decided that tbe'plaint-iff was wanting in ordinary care which contributed to produce bis injury. Before tbe jury were discharged they were polled as to their answer to tbe fifth question.

There was a motion to change tbe answer to tbe fifth question to one in favor of tbe plaintiff and for judgment on tbe verdict as corrected in bis favor, which was denied. Judgment was then rendered in tbe defendants’ favor.

For tbe appellant there was a brief by *Morris & Hartwell,*attorneys, and *Higbee & Higbee,*of counsel, and oral argument by *E. C. Higbee.*

*George H. Gordon,*for tbe respondents.

Marshall, J.

Tbe foregoing brief statement of tbe case, especially in connection with tbe statement on tbe former appeal (123 Wis. 399, 101 N. W. 935), sufficiently, it is thought, for the purposes of tbe questions to be decided, shows tbe situation to which tbe governing legal principles apply.' As indicated, it is conceded by appellant that the evidence bearing on tbe subject of contributory negligence of tbe plaint*388iff is as favorable .to tbe respondents now as on tbe former occasion, while counsel for tbe latter claim tbat it is more favorable. It is sufficient to preclude legitimate rediscussion of tbe matter tbat as strong ground exists in tbe evidence for bolding tbat tbe issue in respect to contributory negligence was for tbe jury, on tbe last trial, as on tbe one tbat was previously bere reviewed, wben it was held tbat tbe court should have submitted such issue to tbe jury instead of directing a verdict in favor of tbe defendants. Since appellant’s counsel make no stronger claim than tbat tbe records in respect to the subject under discussion are substantially tbe same, tbe former decision must be regarded as *res adjudicata*of tbe question now. Tbe previous bolding tbat on tbe evidence plaintiff was entitled to have tbe matter submitted to tbe jury obviously included tbe right of defendants to have it so submitted. Tbe rule is tbat tbe decision of a question on appeal is *res adjudicata*of tbe same matter wben again presented in tbe same case upon tbe same or substantially tbe same evidence.

In *Klatt v. N. C. Foster L. Co.*97 Wis. 641, 73 N. W. 563, speaking on tbe subject above discussed where tbe question as to contributory negligence upon tbe first appeal was only there inferentially passed upon, it was said:

> “On a former appeal in this case a judgment in plaintiff’s favor was reversed and tbe cause remanded for a new trial. . . . Tbe evidence was tbe same, substantially, then as now. The question of whether tbe evidence on such former appeal showed conclusively contributory negligence of plaintiff was raised but not decided in tbe opinion, though it is considered tbat tbe decision was, in effect, tbat tbe evidence was sufficient to carry tbe case to tbe jury on all tbe issuable facts as to plaintiff’s cause of action. It follows tbat, tbe evidence being tbe same on this appeal, tbe question of whether there was sufficient evidence to warrant tbe submission of tbe case to tbe jury must be considered foreclosed by tbe former decision.” '

To tbe same effect are *Crouse v. C. & N.*W. *R. Co.*104 Wis. 473, 480, 80 N. W. 752; *Darcey v. Farmers’ L. Co.*98 *389Wis. 573, 74 N. W. 337; *Collins v.*Janesville, 111 Wis. 348, 87 N. W. 241, 1087; *Zimmer v. Fox River Valley E. R. Co.*123 *Wis.*643, 645, 101 N. W. 1099.

Erom the foregoing it will he readily seen that the proposition as to whether the court erred in not changing the answer of the jury to the fifth question so as to find the appellant free from contributory negligence must be determined in respondents’ favor, because, if for no other reason, of the decision of the court on the former appeal.

The court instructed the jury in respect to the fifth question, as follows:

> “If the plaintiff knew, that there was a rapidly revolving knife or knives at the edge of the lower hopper, that his hand was liable to come in contact therewith in attempting to take hold of the hopper, he must be held to have appreciated the danger and assumed the risk in attempting to do the work, although by the express direction of the defendant.”

> “The true test as to whether a minor has assumed the ordinary risks of his employment, or is'guilty of contributory negligence, is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger.”

> “The defendant had a right to assume that the plaintiff was a person of ordinary 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.”

It is suggested that such instructions violated the rule that the court should not advise the jury as to the effect of their answers, relying on *Gutzman v.*Clancy, 114 Wis. 589, 90 N. W. 1081, and cases therein referred to. The rule invoked is so familiar that discussion as to its scope seems unnecessary. Counsel do not point out definitely wherein the instructions complained of violate such rule, and we are unable to discover the suggested difficulty. The instructions were not given generally in the case, but with reference to the particular ques*390tion to which they were supposed to apply. That question covered the phase of contributory negligence denominated “assumption of the risk” and negligence of the plaintiff as regards his personal safety inconsistent with that which, considering his age and intelligence, he ought to have known. Therefore, it was legitimate for the court' to instruct the jury as to what constituted contributory negligence in those aspects of the case in order that they might answer the question in-, telligentlv. The instructions seem to have been given for that purpose and the first two at least to have been appropriate,, and the last, if not so, not to have been prejudicially inappropriate.

It is insisted that the court erred in saying to the jury, in effect, that plaintiff assumed the risk as to that which he ought to have known and comprehended, even if it were a fact that he did not know and comprehend the danger. The instruction is in accordance with the settled law on the subject, as we understand it. The authorities cited by the learned counsel for the appellant, rightly understood, support rather than condemn that view. For support of the contrary this language from 20 Am. & Eng. Ency. of Law (2d ed.) 98, is called to our attention:

> “Even where the danger is patent or open to observation, it is the duty of the master to warn and instruct in regard to> it, if through inexperience, or from any other cause, the servant is incompetent to understand fully and appreciate the nature or extent of the danger.”

Note the language, “if through inexperience, or from any other cause, the servant is incompetent to understand,” etc. There was no evidence in this case that the plaintiff was not a person of ordinary intelligence and capacity for one of his years. On the contrary, the evidence tended to show that before the accident one would have supposed that he was rather above the average of boys of his age. As indicated in the statement, he was substantially man-grown, he weighed 150 *391pounds, and further, the evidence indicates that he was quite well advanced in an educational way.

The principles covered by the three instructions, as claimed "by counsel for respondents, have been frequently declared by this court in substantially the same words as those used by the learned court. In *Roth v. S. E. Barrett Mfg. Co.*96 Wis. 615, 71 N. W. 1034, it was held that a boy eighteen years of age, who had observed the operation of a straw cutter, the knives of which were hidden from view, needed no instruction when put to work at such a machine, that if he allowed his hand to be inserted into the place for feeding in the straw it would be liable to be cut. In *Groth v.*Thomann, 110 Wis. 488, 86 N. W. 178, it was held that a girl fifteen years of age set to work at an ironing device called a mangle, which required her to feed garments into revolving rolls, needed no instruction that if she allowed her fingers to be caught between the rolls she would be injured. It was there said, in effect, that the principle of law is too familiar to be reasonably forgotten by trial courts, that as between master and servant instructions need not be given of the perils of the employment where there is no need of instructions, and that *az*person of average intelligence of the age of fifteen years must be presumed to know that it is dangerous to allow the hand to be caught between revolving rolls.

The learned court doubtless had in mind in approving of the instructions, as the learned counsel for respondents probably did in draughting them, the following language of this court, which has been many times approved, found in *Helmke v.*Thilmany, 107 Wis. 216, 83 N. W. 360:

> “This court has repeatedly held that the true test as to whether a minor has assumed the ordinary risks of his employment, or is guilty of contributory negligence, is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known'and comprehended such danger.”

*392It will be seen that snch language was adopted *verbatim*in tbe second instruction. Tbe language of tbe third instruction, as suggested by respondents’ counsel, was taken *verbatim*from tbe opinion of this court in *Schiefelbein v. Badger P. Co.*101 Wis. 402, 77 N. W. 742. That bas been so frequently approved as to be regarded as elementary law.

Tbe further claim is made that the answer to tbe fifth question is inconsistent with tbe answer to tbe second, tbe latter finding plaintiff free from contributory negligence, and tbe former finding tbe contrary. What’ bas been said sufficiently answers that. The second question was evidently given to cover tbe subject of whether plaintiff was guilty of contributory negligence, in that be knew, when be took bold of tbe hopper, of tbe revolving knives and that they would be liable to cut bis band, while tbe fifth was given with reference to tbe broader subject of whether be knew, or ought to have known, and comprehended tbe danger of there being revolving knives which would be liable to cut bis band if be undertook to take bold of tbe edge of tbe hopper as be did. Tbe answers taken together indicate with reasonable certainty that the jury considerately decided that plaintiff did not in fact know of tbe peril be subjected himself to, but that considering bis age and experience he'failed to exercise that ordinary care, reasonably to be expected of one of bis age, in not knowing of and comprehending such peril.

We are unable to discover any error in tbe record.

*By the Court.*— Tbe judgment is affirmed.

Cassoday, C. J., took no part.