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[388]*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 [389]*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[390]*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 [391]*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.
Free access — add to your briefcase to read the full text and ask questions with AI
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[388]*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 [389]*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[390]*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 [391]*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.”
[392]*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.