UNITED STATES. Revised Statutes, sec. 2324, Mining...... 16 Stats. at Large, c. 197, sec. 16, Military Reservation.. 27 Stats. at Large, c. 360, p. 345, National Banks... MASSACHUSETTS. .... REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA. [S. F. No. 9. Department One.-May 23, 1896.] JOHN T. GIBSON, BY GUARDIAN, ETC., RESPONDENT, v. THE STERLING FURNITURE COMPANY, APPELLANT. NEGLIGENCE-INJURY TO MINOR-FAILURE TO INSTRUCT-APPEALCONFLICTING EVIDENCE.-In an action to recover damages for injury to a minor, upon the ground of negligence in putting him at a dangerous task, without knowledge or experience on his part of the dangers incident thereto, and without warning or instructing him how to avoid such dangers, a verdict and judgment for the plaintiff will not be disturbed upon appeal, where there is a substantial conflict in the evidence, and there is evidence tending to sustain the verdict, to which the jury and the judge of the court below gave credence, notwithstanding there is a preponderance in the number of the witnesses for the defendant. ID. NEGLIGENCE OF MASTER TUROUGH FELLOW-SERVANT-INSTRUCTIONS -PLEADING.-Where there is no averment of the negligence of a fellow-servant in the answer, and the only material issue is as to whether the plaintiff was set to work while the dangerous machine was in motion, without knowledge, warning, or instruction as to the danger, the only negligence involved in the issue is the negligence of the master in failing to give such warning or instruction, for which the master is responsible, nothwithstanding the immediate instrumentality through which such negligence occurred was the act of a fellow-employee of the plaintiff; and, under the pleadings and evidence, instructions predicated upon the principle that a master is not liable when the injury is suffered through the negligence of a fellow-servant, are properly refused. APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. A. A. SANDERSON, Judge. The facts are stated in the opinion of the court. Smith & Murasky, and E. J. & J. H. Moore, for Appellant. The jury had a right to pass upon the question as to plaintiff's capacity and intelligence. They should have been instructed, as defendant requested, on the legal bearings of the matter under the facts before the jury. (Meeks v. Southern Pac. R. R. Co., 52 Cal. 602; McQuilken v. Central Pac. R. R. Co., 64 Cal. 466; Roller v. Sutter Street R. R. Co., 66 Cal. 230.) The court erred in refusing defendant's proposed instruction, that if the evidence showed that plaintiff was injured by reason of the negligence or carelessness of a fellow-employee of defendant, the verdict should be for defendant. (Livingston v. Kodiak Packing Co., 103 Cal. 258; Noyes v. Wood, 102 Cal. 389; Sappenfield v. Main Street etc. R. R. Co., 91 Cal. 48; Meeks v. Southern Pac. R. R. Co., supra; McQuilken v. Central Pac. R. R. Co., supra; Roller v. Sutter Street R. R. Co., supra; Code Civ. Proc., sec. 1970; McLean v. Blue Point Gravel etc. Co., 51 Cal. 255; Fagundes v. Central Pac. R. R. Co., 79 Cal. 97; Fisk v. Central Pac. R. R. Co., 72 Cal. 42; 1 Am. St. Rep. 22; Davis v. Southern Pac. Co., 98 Cal. 14; 35 Am. St. Rep. 133; Congrave v. Southern Pac. R. R. Co., 88 Cal. 360; Burns v. Sennett, 99 Cal. 363; Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554; Beasley v. San Jose etc. Packing Co., 92 Cal. 388; Trewatha v. Buchanan etc. Co., 96 Cal. 494; Wood on Master and Servant, 812.) The rule is not altered by the fact that the party injured is a child. (Fisk v. Central Pac. R. R. Co., supra.) The court erred in refusing the instruction that if, when the boy was put to cleaning the machine, it was in motion, having been put in motion by some fellow-servant or employee of defendant, after Mr. Moore left and without his knowledge, or that of the assistant manager, the verdict should be for defendant. (Davis v. Southern Pac. Co., supra.) Also in refusing the instruction that if the evidence showed that plaintiff was twelve or fifteen years old, and intelligent for his age, the burden of proof was on plaintiff to show that he did not have the capacity to understand and avoid the danger. (Bailey on Master's Liability; Wood on Master and Servant, 7, 8, and cases.) Also, in refusing the instruction that an employer is not bound to warn an employee, even though he be a minor, of an obvious danger. (Bailey on Master's Liability, 114, 115, 157, and cases.) The evidence was insufficient to justify the verdict, and the verdict was against the evidence and the law. All evidence to sustain plaintiff's pretension that, when ordered to clean it, the sand-papering machine was attached to the gearing, with shield and plate (the safeguards) off, and the machine in motion, is "legally incredible." (Irving v. Cunningham, 66 Cal. 17; Blankman v. Vallejo, 15 Cal. 638; Baker v. Fireman's Fund Ins. Co., 79 Cal. 34.) The grounds of accident and surprise and newly discovered evidence entitled appellant to a new trial. The court erred in excluding the evidence as to what the custom is among persons in the same class of business, and who use these machines generally, and in trade generally, as to having boys clean that machine. (Code Civ. Proc., secs. 1870, 1963; Civ. Code, secs. 1645, 1646, 1647, 1655, 1656, 1982; Sappenfield v. Main Street etc. R. R. Co., supra; Burns v. Sennett, supra.) H. H. Davis, and Dunne & McPike, for Respondent. It is the duty of the master, not only to warn the child, but to instruct him as to the dangers of the employment, and the means of avoiding them. (Fisk v. Central Pac. R. R. Co., 72 Cal. 38-43; 1 Am. St. Rep. 22.) The jury is the exclusive judge of the evidence, and it is for them to say which witness' testimony they will accept as having given the true and real facts. This court will not disturb a finding of fact by a jury or trial judge which is the result of the consideration of evidence that is really and materially conflicting. (Blythe v. Ayres, 102 Cal. 260; Field v. Shorb, 99 Cal. 666.) The doctrine of negligence of fellow-servants has no application to this case. If there was any negligence in the |