APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. FIEDLER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Lawrence Matteucci, a minor, appearing by his father (plaintiff) brought action for personal injuries against High School District No. 208 of Cook County, Illinois (defendant). A jury returned a verdict for plaintiff. Judgment was entered thereon and defendant appeals.
We need not detail all of the testimony of the various witnesses. Defendant's brief succinctly summarizes the factual situation in one sentence: "The plaintiff, a student of the age of 14 years 11 months injured his hand in a high school wood shop class when he was using a bench saw without using the blade guard attached." Additional pertinent facts will be stated as required in considering the contentions raised by defendant.
Defendant's basic proposition is that the court erred in denying its motion for a directed verdict at the close of all the evidence. This, in turn, involves subsidiary points: (1) The evidence failed to show negligence by defendant in supervision and instruction to plaintiff in safe operation of the saw. (2) The evidence fails to show that negligence of defendant was the proximate cause of plaintiff's injury. (3) The evidence showed plaintiff guilty of contributory negligence as a matter of law. Defendant also urges that the trial court erred: (4) in overruling defendant's objection to evidence concerning an injury to another student using a different machine; (5) in overruling defendant's objection to evidence concerning a different type of guard for the saw; and (6) in giving a faulty instruction upon the disputed issues of fact. These contentions will be considered in order.
Proceeding first with the issue regarding proof of negligence of defendant, we will summarize the evidence, noting conflicts where they exist. Plaintiff was a high school student in a basic wood shop course extending for 18 weeks. This included the use of appropriate machines such as saws, lathes and jointers. There were about 24 students in the class. The injury occurred while plaintiff was using a circular bench saw operated by electric power. This machine has a metal table with a slot for protrusion of the circular blades. One blade is for ripping or cutting wood with the grain and the other is for cutting across the grain. Either blade is selected by the operator and it may be raised or lowered as required. There is a metal guide on the top surface of the machine. This guide can be adjusted by the operator to set the correct width of the cut. For safety reasons, this particular machine was also fitted with an aluminum guard above the saw blade. This guard had a counterweight so that it could be adjusted by being raised or lowered.
The teacher testified that the jointer and the bench saw were the most dangerous machines in the shop. They were close together so that "they could be easily observed" by the instructor. His testimony was that it was rather important to give close supervision to students using this equipment. He testified that he demonstrated the proper use of the bench saw to the entire class and that he "checked out" most students on the bench saw, including plaintiff. The witness also wanted to stand by each individual student when they were using the machine. In addition, the teacher testified that he used, in this class, a textbook explaining safety procedures for the machines. Also a list of safety rules for the bench saw was mimeographed and given to the students at the inception of the course. These rules advised use of the metal guard on the bench saw.
The teacher testified that he instructed the students on use of the guard. He had only operated the machine without the guard on very rare occasions, to cut at an unusual angle. He had seen students attempt to use the saw without the guard but had never seen any student actually operate this machine without the guard. He testified that permission was required from him before the students could use this machine. On the day in question, he knew that plaintiff was working on his project, a set of legs for a coffee table. He also knew that use of the bench saw by plaintiff was necessary to complete the project. The teacher testified that on the day in question he was working with other students in the classroom about 25 feet from the saw.
On the contrary, plaintiff testified that permission was not required for use of the machine by any member of the class. Three other witnesses, who were students in the class, also testified that permission from the instructor was not required before using the machine. There was testimony that some students had used the bench saw without prior permission and without the teacher standing at their side. One student testified that he received no individual instruction on use of the machine. Plaintiff also testified that he had used the machine on two prior occasions and that he had always used it without a guard. He had seen other members of the class as well as the instructor use the machine with the guard raised up out of the safety position. Other witnesses testified that they had seen students use the saw without the guard.
It must be conceded that the circumstances in this case placed a duty of due care upon the instructor. Safe use of this dangerous instrumentality certainly required due care from the instructor with reference to instruction of the students as to proper use of the machine and proper supervision to enforce necessary rules of safety. As stated by counsel for defendant in their brief, there is a paucity of authority in Illinois on this precise question because of the ancient doctrine of tort immunity for school districts, not abolished until the decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89. Perhaps the closest case on the facts is Ridge v. Boulder Creek Union High School District, 140 P.2d 990, cited by plaintiff. There, in a rather similar situation, the defendant School District was held liable for injuries to a student. There was testimony that the injured student was never instructed not to use the saw without the safety guard and also that "* * * the instructor and other students used the saw without the safety devices on some occasions." 140 P.2d 990, 991.
Defendant cites and relies upon Johnson v. Board of Education of the City of Hudson, 210 App. Div. 723, 206 N.Y. Supp. 610 where the School District was held not liable. There, in direct contrast to the facts at bar, the injured student "* * * was not pursuing a kind, of course, of instruction which required the use of the saw; he was never instructed in its use and was never given permission to use it." 210 App. Div. 723, 725.
• 1 However, in both of these cases, and in other authorities cited by plaintiff, the existence of the duty of due care on the part of defendant and the instructor as its agent, seems clearly defined and accepted. We hold specifically that, in circumstances as shown by this record, where a high school class is obliged to use admittedly dangerous machines, there is a duty upon the instructor, as agent of the school, to exercise due care in instructing the students in safe and proper use of the machines and also a duty to exercise due care in proper supervision of the students in use of the machines as a part of regular school activities.
• 2-4 The issue here, therefore, becomes factual as to whether defendant's agent breached its duty of due care and was thus guilty of negligence or whether its agent acted in a reasonable manner so as to eliminate liability. As above shown, this record presents conflicting evidence as to very important facts regarding both instruction and supervision by the teacher. Under these circumstances, the issue of negligence was one of credibility for determination by the jury. (Noncek v. Ram Tool Corp., 129 Ill. App.2d 320, 327, 264 N.E.2d 440.) In such a case, we cannot substitute our judgment for the verdict. (Napier v. DiCosola, 126 Ill. App.2d 324, 327-329, 261 N.E.2d 779.) We find in this regard that the verdict is not contrary to the evidence but that it is supported by a preponderance of the evidence. Under the Pedrick standard, the court did not err in denying defendant's motion for a directed verdict on this ground. Pedrick v. Peoria and Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504.
The next issue raised by defendant is lack of proximate cause. On this aspect of the case, the evidence shows that, immediately after the process of using the saw, plaintiff turned off the power and walked around the machine. His feet slipped on some sawdust, "or it could have been anything." As his feet came out from under him and he started to fall, he attempted to catch himself and his hand came in contact with the blade of the saw, which was still revolving. Defendant argues that plaintiff had produced sawdust in the vicinity of the machine by his own act. The evidence as to the presence of sawdust was uncontradicted. Defendant thus contends that plaintiff's own conduct was either the sole proximate cause of his injury or at least a "concurring" cause thereof.
• 5 The correct rule defining proximate cause is simply stated. A decision often cited in this regard is Ney v. Yellow Cab Co., 2 Ill.2d 74, 79, 117 N.E.2d 74, 78, where the court used this language:
"The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with ...