#### Wolski, Administratrix, Appellant, vs. The Knapp-Stout & Co. Company, Respondent.

*March 11*— April *23, 1895.*

*Master and servant: Dangerous employment: Killing of minor servant: Assumption of rislc: Court and jury.*

Plaintiff’s intestate, a minor employee of defendant, was killed while assisting in the skidding of logs. The skidway was at the foot of a steep hillside, down which the logs were rolled, the employees - catching and straightening them when they began to roll crooked.. The intestate, without any previous experience in this work, had been engaged in it for about five days when he was run down by a rolling log and killed. Upon the evidence (tending to show,, among other things, that the work had elements of danger not obvious to the inexperienced) it is *held*that the questions whether the deceased was adequately instructed as to the ordinary dangers of the employment, and whether he assumed the risk, were for the jury.

Appeal from a judgment of the circuit court for Dunn-county: John K. Paeish, Judge.

*Reversed.*

The action is brought by the plaintiff, as administratrix-of the estate of her son, William Simons, to recover damages for the death of her decedent by accident while in the employment of the defendant as its servant.

The plaintiff’s evidence tends to establish these facts:. The deceased was a minor of the age of eighteen years, large-of his years, being about six feet tall and weighing 180 pounds. He had been to school, and was of fully average-intelligence. He was hired and sent by the defendant to work in its camps in the lumber woods, as an assistant cook. There was at the time no vacant place for a cook. So he was set to work as chain tender, to assist in the skidding of logs. He was entirely without experience in this work, and the defendant knew that he wTas so inexperienced. He-worked at this work about five days. The skidway at which, he was working at the time of his death was at the foot of, *179a steep hillside, about thirty feet long, and of about twenty feet elevation.' It was his business to help the teamster, Wagner, to put the logs- upon the skidway at the foot of this hill. To accomplish this the logs were hauled to the top of the hill, and then rolled down the hill to and upon the skidway. To do this successfully it was necessary to make the logs roll straight down the hill. So, sometimes, it became necessary, when the logs began to roll “ crooked,” to turn or straighten them. In such cases the practice was to catch the log and hold it, or to go in front of it and hold it, so that it should go straight. “ The catcher holds one end of it if it starts crooked, so it will go straight.” It is a dangerous business, requiring judgment, skill, and experience, especially on such a steep sidehill as this. It was not safe, in such a place, to try to hold or to .straighten a log after it had, by rolling, acquired some considerable momentum. The employees were not expected to catch and straighten logs which had acquired any considerable momentum. But the danger of trying to catch and to straighten the rolling-logs cannot be fully understood and appreciated by persons inexperienced in that work. The inexperienced are likely to be deceived in judging of the speed and momentum of a rolling log, and of the practicability of stopping it, while experienced men are much less likely to be so deceived. One mode of catching logs which were to be straightened was by what is called a “ back cant.” This is done with a “ cant hook,” by a reverse application.' One witness said,. “ It requires experience and practice to handle a cant hook.” There is danger in taking a “back cant” upon-a rolling log. If the log has acquired considerable momentum, it cannot be stopped by a back cant, and there is danger that the man who tries it will be thrown, before he realizes the danger,, over the log, in front of it, and will be run over by it. This danger is not obvious, but is to be learned by experience or by instruction. The defendant did not require or expect *180its employees to stop and straighten logs in this way, yet it was frequently done. Deceased was not instructed, and did not understand or appreciate the danger of this mode of frying to stop and straighten the logs. He had heard the foreman tell a man who was trying to take a “ back cant ” upon a rolling log, “ hot to do that.” At the time of the accident he was at work with the witness Wagner. They had just started a log down the hill. It stopped against a larger log. They turned it over the larger log. Just as they had turned it over the larger log, Wagner, for some purpose, turned away, and did not see what followed. Deceased was at the right, and larger, end of the log. He was in some way carried over and in front of the log, near to its left end. He was run down by the rolling log, caught between it and a stationary log, and was killed. No one saw the accident or knows either its precise cause or manner. It is claimed that the accident is unaccountable, except upon the theory that in order to straighten the log the deceased undertook to hold or to stop it by a back cant, and was thrown over and run down by it.

' On the part of the defendant it was claimed, and its evidence tended to corroborate the claim, that the danger was an obvious one, which the deceased should have known and appreciated; that he was instructed of the safe manner of doing the work; and that'he assumed the risk of such danger as was attendant upon the employment.

Terdict for the defendant was directed. , The appeal is from the judgment entered upon that verdict.

For the appellant there was a brief by *O. T. Bundy,*attorney, and *T. F. Frawley,*of counsel, and oral argument by *Mr. Bundy.*

*V. W. James,*for the respondent.

Newman, J.

There were two principal questions involved before the trial court: (1) Was the respondent liable on the *181ground that it bad not sufficiently explained to an inexperienced employee tbe ordinary dangers o£ tbe employment? And (2) whether tbe deceased, under tbe facts disclosed by tbe testimony, assumed tbe risk of tbe ordinary dangers of tbe service. Tbe testimony seems to show a case very near to tbe border line on both questions. On which side it falls is not entirely clear. Tbe law which is applicable is so weE settled as to have become elementary. Tbe difficulty, if any, is in its proper application to tbe facts of tbe particular case. If tbe danger to which tbe deceased was exposed, in tbe service in which be was engaged was such an open and obvious danger as that, considering bis age, intelligence, experience, judgment, and discretion, be ought, in the exercise of reasonable and ordinary care, to have known and appreciated it, then tbe law is that be assumed tbe risk of that danger. On tbe other band, if this danger was not open and obvious to a person of bis age, intelligence, experience, judgment, and discretion,'then be-is not held to have assumed tbe risk, unless be has been sufficiently informed, in some way, of tbe danger, or has bad a reasonable opportunity to learn it by bis own experience. And tbe duty of informing tbe inexperienced employee of tbe dangers ordinarily incident to tbe service is upon tbe employer. *Jones v. Florence M. Co.*66 Wis. 268; *Luebke v. Berlin Machine Works,*88 Wis. 442; *Craven v. Smith,*89 Wis. 119.

Ordinarily, it is within tbe function of tbe jury to apply these principles of tbe law to tbe facts shown by tbe testimony. It is only when tbe proper application is so clear as to be free from doubt that it becomes a matter of law for the court. *Casey v. C., St. P., M. & O. R. Co., ante,*p. 113. Tbe testimony given on behalf of tbe appellant certainly tends with considerable force to show that tbe employment upon which tbe deceased was engaged bad elements of danger such as were not open and obvious to tbe inexperienced, *182but such as, in the absence of instruction, could be learned by experience alone; that it required at least some experience to do the work safely; that the deceased was inexperienced in the work, and was not adequately warned of its dangers. The deceased was a minor. So there is no presumption that he understood and appreciated the danger. . And although there is testimony on the part of the respondent tending to show that instruction was given him, it is yet of an inconclusive character and does not clearly establish the fact. So that it cannot be said that the appellant’s case was without testimony fairly to establish it, nor that the facts, or the proper inference to be drawn from the facts, were clear and free from doubt. So it seems to the court that the questions whether the deceased was adequately instructed, and assumed the ordinary risks of the employment, are not so clear, upon the testimony, as that they were matters of law for the court, but that they were questions of fact for the jury.

*By the*Oov/rt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.