(dissenting). I am unable to concur with the majority of the court in this case, either in the conclusion reached, or in the determination of any of the material questions passed upon. The suit is to recover damages for personal injuries received by the plaintiff while in the employ of the defendant. The plaintiff, a totally ignorant and unskilled employé, was, in effect, against his protest and without any instruction whatever, put in charge of machinery of the most complicated kind, operated by electricity, in handling which he was injured, not from any cause open and obvious even to a skilled person, but by one of a hidden and unseen character. The majority of the court holds him responsible for negligently handling and operating this machinery; moreover, denies his right to recover because his alleged negligence was the proximate cause of the injury sustained. The case turned almost entirely upon a question of fact, as to the vital points of which the lower court properly said the conflict was absolute, and the same was rightfully submitted to the jury, under instructions given by the court, fairly and correctly propounding the law, of which the defendant had no cause of complaint, and in which the majority of the court finds no error, and a verdict having been rendered in favor of the plaintiff, the same ought manifestly npt to be set aside, and to do so, the court plainly usurps the function of the jury. The suggestion that the plaintiff’s negligence in operating the machinery was the proximate cause of the accident, of course, has no application here, where the gravamen of the complaint is that the defendant first erred in the selection of an improper employé, which is admitted. To relieve of responsibility, because the act of the incompetent servant is the proximate cause of the injury, would serve to relieve the master from all obligation, either to employ competent servants or to instruct ignorant ones before placing them in hazardous positions. Nor is there anything in the suggestion made in opposition to the finding of the jury favorable to the plaintiff to the contrary, upon the precise question that the plaintiff was employed to feed the cotton picker, and not to run or unchoke the same. It could not have been run when choked. It was impracticable to feed or run it when choked, and, upon its becoming so, to hold this plaintiff responsible for trying to unchoke the machine, after he had, as he thought, done all that was necessary 'to stop all the machinery, by throwing it out of gear, which it is conceded he properly did, is to hold him — an incompetent and unskilled employé, recklessly and inexcusably, if not criminally, intrusted with the operation of dangerous machinery — responsible for failure to possess the highest degree of skill in that regard. Having served his employer by promptly and efficiently throwing the same out of gear when it became choked, to prevent disaster, he set to work, finding no one at hand to aid him, to do what he had a short time before seen a competent representative of the company do, when the machinery had *643previously similarly clogged — that is, unchoke the same, which even to an ignorant and unskilled employé was apparently an easy and simple thing tó do; but it developed that there was a latent and hidden danger arising from the fact that the cylinders of the machinery connected with the various pickers continued to run for some time after throwing off the gear or belting operating the same, and from this hidden source of danger the plaintiff lost his hand. To say that he should have placed his hand in one position or in another to unchoke the gin is to beg the entire question. He, of course, did not know how to put his hand, or he would not have received the injury, nor would he have put it where he did had he supposed there was danger, or been informed of the hidden cylinder; and he should not have been placed and left in this position of responsibility and peril without being informed of such danger.
The majority opinion correctly states and discusses the law in most respects, applicable to the handling of machinery by competent persons where the dangers are open and obvious; but it is submitted that what is there said has no application to a case like this, arising from the failure to instruct a confessedly ignorant and unskilled employé, who sustains an injury in the handling of complicated machinery from a latent, and not a patent, danger. In any view that can be taken of this case, from my standpoint, alike under the law and the facts, the plaintiff is plainly entitled to recover, the verdict of the jury ought not to be disturbed, and the decision of the lower court should be affirmed.
NOTE. — The following is the opinion of McDowell, District Judge, filed in the court below:
MeDOWELL, District Judge. The instructions given for the plaintiff are, of course, based on the hypothesis that the testimony for the plaintiff gives the true version of the facts; while those given for the defendant are, equally of course, based on the opposite hypothesis. The objection that was urged to the instructions for the plaintiff was, as 1 recall, based on the belief that these instructions imposed a higher duty oni the defendant than the law requires. To this contention I thought it a sufficient response that, if the evidence of Oox and Hall be treated as true, the plaintiff — a green hand — was subjected without proper instruction or warning to a risk from a danger which either was not to this particular plaintiff open and obvious, or which, at least, the jury might properly hold not to have been obvious to this plaintiff. In the instructions given for the plaintiff the question as to the alleged obviousness of the danger was left to the jury. The objection to the defendant’s instruction No. 6, which I think of greatest force, is that it is practically equivalent to instructing a verdict for the defendant. It is in effect that if the plaintiff did not either wait for the machine to come to a standstill or go and get Mr. Money they must find for the defendant. The plaintiff admittedly did not do either. Hence this is equivalent to instructing a verdict. For the court to instruct that the plaintiff should have waited for the machine to come to a standstill is to ignore his entire ignorance of the concealed and armed cylinder inside the machine, and to draw the inference, from the fact that the exterior belt, pulley, and shaft were still revolving, that he must therefore, as a matter of law, have known, not only that some interior part of tile machine was still revolving, but also that in such fact laid an obvious danger — seemingly in some sense an inference from an inference. For the court to instruct that the plaintiff should have gone after Money is to ignore the testimony to tile effect that the plaintiff was not told to wait for or to go after Money if the machine became chokea; that the plaintiff was told to “run” the machine, and that there was no danger, as a blind man could *644run It. ' The reason for refusing this instruction, and for refusing to direct a verdict for defendant, is found in the testimony of Oox and Hall. If their version was.the truth of the matter, the defendant had put a green hand to operate (and not merely to feed) a piece of machinery which, if it had to be unchoked, was dangerous from a cause that was not necessarily open and obvious to the plaintiff — however obvious it might have been to one acquainted with the machine or with machinery in general. The plaintiff had •seen Money unchoke the machine, and the operation appeared to be simple and not accompanied by danger. If he was told to run the machine, and had been advised that it was important to rush the work, it was a natural action on his part to attempt to do the apparently simple and safe thing he had seen Money do, and he had to accomplish, or have accomplished, the unchoking of the machine in order to “run” it and rush the work. Under the instructions that were given, I left it to the jury to say whether or not the plaintiff had exercised a reasonable degree of care and foresight — having laid down the rules of law applicable to the state of facts on both the theory that the plaintiff’s story was the truth and also on the opposite theory. I feel sure that no court can instruct a verdict, if in so doing all of the vitally important portions of the evidence of two competent witnesses is thereby utterly ignored. Defendant’s instruction No. 7 seemed to me erroneous ia that in this instruction the court was either made to say as a matter of law that the revolution of the exterior appliances should have apprised plaintiff of the danger involved in attempting to then unehoke the machine, or-at least it is so worded as to probably mislead or confuse the jury concerning this very vital point in the ease. It will be observed that this instruction contains but one sentence of unusual length. It is involved and confusing even to those supposed to be expert in construing such writings. I think an average jury might easily be utterly confounded by such an instruction, even if not led to suppose that the court was instructing them that the movement of the exterior pulley, belt, and shaft was sufficient to make the concealed, and to the plaintiff then unknown, danger^ an open and obvious one to him. Whether or not the plaintiff was guilty of contributory negligence, and whether or not the danger was obvious to him, seemed to me to be peculiarly for the jury. The answer to such questions depended on the capacity and mental alertness of the plaintiff; on his knowledge of machinery in general; on his knowledge of this particular machine; and in very great degree on the ascertainment of the true facts, concerning which there was sharply conflicting -testimony. The plaintiff, if he and Hall testified truthfully, had been thrown off his guard, and given to understand that there was nothing dangerous to be apprehended in “running” the machine, and he had some reason to suppose, from observing Money’s actions in unchoking the machine, that the operation was simplicity itself. If, however, it was true that he had been told to do nothing but feed the machine, and to go and get Money if the machine became choked, he had to some extent been warned of danger, and perhaps he should have inferred from the exterior movement a continued movement and consequent danger within the machine. It seems to me at least that there was here a question for the jury. Moreover, if there be lurking in this instruction a sound rule of law applicable to this case, such rule had been concisely and clearly set out by the learned counsel for the defendant in their instruction No. 4; and said instruction was given. If in this case the court had had to perform the duty of the jury, possibly a different verdict would have been rendered. But, if so, it would have been because the court would have given more credence to the defendant’s witnesses and less to the plaintiff’s than the jury saw fit to give. The conflict in testimony was absolute on the few vital points in the case. Under such circumstances as existed here, I hold the opinion that the court has no power either to instruct a verdict or to set aside a verdict rendered by the jury which is allowable under the instructions and supported by very much more than a “scintilla of evidence.”