Biggs, Ganey, and Freedman, Circuit Judges.
This is an appeal by defendant in a diversity case from a judgment entered on a jury's verdict in favor of plaintiff in the amount of $30,000, reduced on remittitur to $28,600.
Plaintiff, a native of Puerto Rico, was a Sergeant in the Armed Forces of the United States, and from 1959 to 1961 was stationed at Walter Reed Hospital in Washington, D.C., where he managed the bowling alley in addition to coaching the baseball team and participating in athletics. In 1961, in order to qualify him to service the Brunswick automatic bowling pinsetters, the Army ordered him to attend a four-week course of instruction at the Brunswick Automatic Pinsetter School, conducted by the defendant in Harrisburg, Pennsylvania. The purpose of the automatic pinsetter is to replace all the manual operations previously carried out by a pinboy.
Plaintiff came to the school with no mechanical experience whatever and with a limited command of the English language. The school accepted him, although it had asked the Army not to send him because he had failed the school's enrollment test. This consisted of a number of aptitude tests given by the defendant to measure his intellectual intelligence and his ability to think in abstract forms, and a mechanical comprehension test. Once he was enrolled, defendant treated plaintiff no differently from the students who had passed the tests.
The course was given for five days each week. Two instructors usually supervised a class of twenty-four students, but in the course which plaintiff took there was one instructor. The first week of instruction was devoted to classroom work explaining the theory of the machine and its general operation. In the second week the students began to work on the machine in groups of four students for each of the six machines, which were located in one room. The third week was given to instruction and practice in the disassembly and reassembly of the machines, in which the students worked in groups of four for each machine.
Plaintiff began his course on February 6, 1961. On Wednesday, February 22, 1961, during the third week of instruction, plaintiff and his fellow students had gone through two and one-half days of experience in disassembling and reassembling the machines. While the six teams were competing in disassembling the machines plaintiff reached his right arm into a machine and took hold of a hook in order to save time by causing the machine to skip a stage in its operation. To accomplish this it was necessary that the machine be turned on while he held the hook. Plaintiff intended to remove his arm after the machine was activated, but one of his teammates prematurely switched on the current, which caused a rake in the machine to strike and fracture the plaintiff's arm before he could remove it, with resultant partial permanent disability which required his retirement from the Army.
Defendant contends that there was no proof of its negligence, that plaintiff was contributorily negligent as a matter of law, and that the court below committed errors in its charge.
There is adequate evidence in the record, which must be read favorably to the plaintiff, to justify the finding of the jury that the defendant was negligent. The jury could have found that the defendant was negligent in the manner in which it operated its school, and in manufacturing and using the machine without a protective screen which would have shielded the side from which plaintiff reached into the machine.
Defendant not only accepted plaintiff as a student knowing his inadequacies in ability and in communication, but also closed its eyes to its knowledge by treating him indiscriminately with the qualified students. What is more, it engaged all the students in competition among themselves, in which speed of operation, necessarily based on skill and comprehension, became significant elements. The jury could have found that little attention was paid to safety precautions. But what is more important in the proof of negligence is the plaintiff's evidence that he had seen his instructor and two other students hold the hook in order to save time, just as he later did, and that he was never told not to do so himself. In fact, when asked if anyone else had placed his arm in the same position as he had done, he replied, "We do it every day." The jury could fairly have inferred that the instructor, who had done the same thing himself, saw it done by students and did not warn them against it.
The jury could have found, therefore, that defendant supplied but one instructor for twenty-four men working in teams of six, that it placed each team in competition with the other, that it totally disregarded the differences in the extent of each man's knowledge and skill, that its instructor himself held down the hook and saw others do the same thing, thereby encouraging by his example and by his silence the repetition by the competing students of the dangerous act. Negligence is the failure to exercise due care, and this means due care under the circumstances of the particular situation. A teacher's superiority in knowledge and experience imposes responsibilities in his dealing with students which become an inherent element in measuring his compliance with the due care which is required of him. A teacher may not, either by express instruction, or by his own example or his permission to others, teach a student to act in a manner which is unnecessary in the process of instruction and dangerous to his safety. If there were no other evidence in the case, the testimony that the instructor himself had held the hook in order to save time and had permitted others to do it, no matter how infrequently, was enough to support a conclusion that defendant fell below the standard of reasonable care in giving instruction.
In addition to this, the evidence showed that a small, inexpensive screen or shield could have been provided to prevent access on the side of the machine. Since in commercial use the machines are placed directly adjacent to each other so that the sides are inaccessible, and they can therefore be conveniently repaired only from above and in front, there was no necessity to use the machines in the school without screens. If the machines had been screened the plaintiff would have been unable to put his arm in from the side. Nevertheless, the students, including the plaintiff, were permitted and by example encouraged to work from the side of the machines, thus creating the danger ...