D. C. 1907 LAWSON บ. PACKARD Mulock, C.J. when working a stamping machine in the defendants' factory, During the argument before us Mr. Armour observed that if such amendments were allowed, he would have the right to plead the omission of the plaintiff to give the statutory notice of the injury. This right he should have, and, if any issue arises in consequence of the plaintiff's amendment, it may be tried and dealt with by the Divisional Court, before judgment on this appeal is entered. Dealing, then, with the merits of the case, it seems that the plaintiff, a schoolboy fourteen years old in the previous February, was, about the 29th of May, 1907, engaged by Mr. Pope, the defendants' foreman of the down stairs department, to work in their factory, and upon the 19th of June following he met with the accident in question. On the floor where the plaintiff worked were different machines, amongst them a varnishing machine, a drill, and a stamping machine, the latter being used for punching out tin plates. The power which drove this machine was communicated to it by a belt, which passed over the driving shaft, and the stamping machine was set in motion by the operator pressing his foot upon the treadle; thereupon the stamp descended on the metal and punched out the metal plate. This had to be removed before another plate was stamped, and, in the meantime, the machine was stopped by the operator taking his foot off the treadle. The custom was to remove the stamped plate by means of a stick, but on the occasion in question the stick had been mislaid, and the plaintiff, who was operating the machine, endeavoured to remove the plate with his hand, when the punch descended and caused the injury complained of. The machine was in order, and the inference is that the plaintiff inadvertently pressed his foot upon the treadle, causing the punch to descend whilst his hand was underneath it removing the stamped plate. The defendants say that the plaintiff had no right to operate the machine, and that, therefore, they are not responsible for the accident. From the nature of Pope's instructions to him the plaintiff supposed it to be his duty to run the machine. The defendants, however, say that his instructions were not open to such construction. If Pope's instructions were such that, no matter what he intended by them, they did in fact receive from the plaintiff the construction he placed upon them, then it is a question who is responsible for the consequences of such misunderstanding. This question involves general consideration of the defendants' duty towards this plaintiff when engaging him to work in a room in the vicinity of dangerous machinery, and to assist generally all who were engaged on that floor, and who were also more or less employed in running this machinery. The defendants' counsel, relying upon Cribb v. Kynoch, Limited, [1907] 2 K.B. 548, argued that, though the plaintiff was a young and inexperienced person, still he must be held to have assumed the risk of the negligence of Pope, a fellow workman, but here that defence is cut away by the Act in question, which makes the master responsible for the negligence of his superintendent. As stated by Lord Watson, in Smith v. Baker et al., [1891] A.C. 354: "The main, although not the sole, object of the Act of 1880 was to place masters who do not, upon the same footing of responsibility with those who do, personally superintend their works and workmen, by making them answerable for the negligence of those persons to whom they entrust the duty of superintendence, as if it were their own." . Sub-section 2 of sec. 3 of the Workmen's Compensation for Injuries Act, R.S.O. 1897, ch. 160, enacts that "where personal injury is caused to a workman by reason of the negligence of any person in the service of the employer, who has any superintendence entrusted to him, whilst in the exercise of such superintendence, the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work." Here Pope was in the service of the defendants as foreman, engaged the plaintiff, and gave him certain instructions, and at the time of the accident Pope was in the exercise of such superintendence. If, then, the accident happened D. C. 1907 LAWSON v. PACKARD Mulock, C.J. D. C. 1907 LAWSON บ. PACKARD ELECTRIC Co., LTD. Mulock, C.J. because of Pope's negligence, the principle enunciated in Cribb v. Kynoch, Limited, would have no application. The question to determine is what duty, if any, did the defendants owe to the plaintiff, the breach of which caused the injury. It is the master's duty to exercise reasonable care for the safety of his servant, by making known to him the risks which he incurs when operating dangerous machinery, and (if he is not to operate it) by giving him instructions to that effect in language sufficiently definite not to be reasonably open to the opposite conclusion. Obviously, no arbitrary standard of such duty can be set up, but it must vary according to circumstances. The object to be served is to make reasonably clear to the servant the services required of him and the risks which he incurs in order that, realizing them, he may be on his guard to prevent injurious results. Thus, if the employee be an expert, knowing and fully appreciating the risks of his employment, the master would thereby be relieved of the superfluous task of pointing them out to him, but if the employee be inexperienced or with but a limited knowledge of the risks, or does not fully appreciate them, then the master's duty is to exercise such degree of care as the circumstances demand in order that the employee may know and intelligently realize the dangers which accompany his employment. In discussing this subject in Grizzel v. Frost (1863), 3 F. & F. 623, Cockburn, C.J., at Nisi Prius, says: "I am of opinion that if the owners of dangerous machinery, by their foreman, employ a young person about it quite inexperienced in its use, either without proper directions as to its use or with directions which are improper and which are likely to lead to danger, of which the young person is not aware, and of which they are aware, as it is their duty to take reasonable care to avert such danger, they are responsible for any injury which may ensue from the use of such machinery." Again, in Robinson v. W. H. Smith & Son (1900), 17 Times. L.R. 235, which was the case of a boy twelve years of age, employed by the defendants to deliver newspapers from their bookstall at the railway station to customers in the town, the plaintiff was not warned not to cross the railway. It was held that the employment being a dangerous one, in regard to which a duty was thrown on the defendants of taking special care, there was evi dence of negligence to go to the jury. Mr. Justice Wills says:"It is all very well to say that delivering newspapers was not in itself dangerous, but if done under circumstances such as these, namely, that the newspapers were brought from the railway station, and the persons delivering them had to cross the line, and these persons were boys, and a class of persons anxious to be insubordinate, it was, in his opinion, a dangerous employment, and one in regard to which a duty was thrown upon the employer to take special care. He was far from assuming that the defendants had not done everything that was right, but the question was merely whether the matter ought to be investigated, and he thought that it was a matter for investigation. Everyone knew that if boys were not well watched, they would get themselves into danger when there was an opportunity of doing so, and it did look as if things were done in a hap-hazard way in this case. It seemed that the plaintiff was allowed to be shewn his duties by another boy. As the evidence stood he was given no instructions or warnings not to go on the line, and one knew that boys. were certain, in some cases, to be ambitious to try and get a reputation for smartness. A reasonable precaution, therefore, would have been for the defendants to make it known among the boys that to get a reputation for smartness by risking their lives on the line was not the way to get promotion." In Murphy v. Smith (1865), 19 C.B.N.S. 361, the plaintiff, a boy sixteen years of age, was employed in a match factory, of which the foreman was one Simlack, who had engaged the plaintiff. A portion of the process of manufacturing matches consisted in mixing a fluid, composed of a number of chemical substances, which, if stirred by an inexperienced person, was liable to explode. It was no part of the plaintiff's duty to touch this mixture. However, on the occasion in question he stirred it with a stick, thereby causing the explosion which injured the plaintiff, and an action was brought against the master because of such injury. It appears that at the time of the accident Simlack was absent from the room, and another employee, Debar, was standing by, but did not instruct the plaintiff not to stir the mixture. The jury found that Debar was guilty of negligence in standing by while the plaintiff stirred the mixture, and a verdict was returned for the plaintiff. On a motion for non suit D. C. 1907 LAWSON v. PACKARD ELECTRIC Co., LTD. Mulock, C.J. D. C. 1907 LAWSON v. PACKARD on the ground that there was no evidence to shew that Debar was the manager, Erle, C.J., in delivering the judgment of the Court, which directed a non suit, said, at p. 367: "There was evidence for the jury that Simlack was placed by the defendant in the position of a vice-principal. If the case had rested there, I would have been Co., LTD. inclined to think that the verdict ought to stand." The verdict, Mulock, C.J. however, was set aside because the accident was the result of the negligence of Debar, a fellow workman. If it had been Simlack's negligence the verdict would have been sustained, although the accident occurred by reason of the plaintiff doing something which he was not instructed to do, and which was wholly unauthorized by the defendants. This case, in fact, suggests that it is the duty of the employers not to employ inexperienced persons in connection with dangerous works, and to leave them in such position that they may of their own volition do something in connection with such dangerous works which may cause the injury. In Crocker v. Banks (1888), 4 Times L.R. 324, a girl seventeen years old was injured by the bursting of a soda water bottle whilst she was, in the course of her duty, engaged in filling it. The evidence shewed that she was an expert hand, but had omitted to use a mask provided for her at a certain stage in the operations. She swore that she did not know of the danger for protection against which the mask was provided, and Lord Esher, M.R., says: "It was not negligence for a girl of her years to omit to put on the mask if she did not know she was bound to do so at that period of the operation." In Bartonshill Coal Co. v. McGuire (1858), 3 Macq., 300, at p. 311, the Lord Chancellor, in commenting on the case of O'Byrne v. Burn (1854), 16 Dunlop 1025, says: "She (the servant) was an inexperienced girl employed in a hazardous manufactory, placed under the control, and, it may be added, the protection, of an overseer, who was appointed by the defender, and entrusted with this duty. And it might well be considered that by employing such a helpless and ignorant child, the master contracted to keep her out of harm's way in assigning to her any work to be performed." In Moore v. Moore (1901), 4 O.L.R. 167, the facts as set forth in the judgment of Armour, C.J.O., were that the plaintiff, a lad fourteen or fifteen years of age, was employed in the defendants' |