55 Ind. App. 398 | Ind. Ct. App. | 1914
This was an action by appellant against appellees to recover damages for personal injuries sustained by him while in their employ as an engineer in their coal elevator, and is based upon the alleged negligence of appellees in not providing a proper ladder for appellant’s use in
Upon first reading there seems to be conflict between some of the facts found by the jury in answer to the interrogatories. The jury finds that the worn and old and decayed condition of the ladder, and of the step which broke, could be seen by one using the ladder, or looking at it from the ground. It also finds that the ladder was defective because it was worn from use, and that the step which broke with appellant broke because it was. worn from use. Yet it finds that one using the ladder, or looking at it from the ground could not see that the ladder was defective, and that appellant did not know that the ladder was defective. Perhaps this conflict may be removed if we consider that the jury used the word “defective” as meaning “so weak as to be liable to break”, and that when stating that one could not see its defects, or did not know that it was defective, the jury did not mean to say that such a one did not know the worn, old and decayed condition of the ladder.
It was said in the case of Scharenbroich v. St. Cloud Fiberware Co. (1894), 59 Minn. 116, 60 N. W. 1093, “It is thoroughly established in the law that a servant does not necessarily assume the risks incident to the use of unsafe machinery because he knows its character and condition. He must also have understood, or by the exercise of ordinary observation ought to have understood, the risks to which he is exposed by its use. In this case it is undisputed that the plaintiff knew the exact nature of the situation. He knew that the floor was wet; that this made the floor slippery; that there was nothing, except the smooth floor, against which to brace his feet when turning the lever; that if his foot slipped there was nothing to prevent it from coming in contact with, and being caught by, the revolving pinion; and that if it did it would be injured. It required no special skill to understand these things, as they were patent to the sense upon the most ordinary observation. Indeed, he admits that he was aware of all this. His only excuse is that he did not think of his foot slipping. But in view of the situation — the floor being wet, and he in the act of applying special force to turn the lever — he must or ought, in the exercise of ordinary intelligence, to have understood that there was increased liability of his foot slipping, as this was a matter of ordinary experience, and in accordance with the most simple and familiar laws of nature. It is impossible to conceive of anything which any one could have told him, about either the situation or the risks incident to it, which was not perfectly patent to the senses, in the exercise of common observation by an adult of ordinary intelli
The court committed no error, and the judgment is affirmed.
Note.—Reported in 103 N. E. 875. As to assumption of risk and contributory negligence in law of master and servant, see 97 Am. St. 884 ; 98 Am. St. 289. As to the servant’s assumptom of risk of dangers created by master’s negligence, which might have been discovered by the exercise of ordinary care on the part of the servant, see 28 L. R. A. (N. S.) 1250. As to servant’s assumption of obvious risks of hazardous employment, see 1 L. R. A. (N. S.) 272. See, also, under (1) 38 Cyc. 1869, 1929; (2) 38 Cyc. 1928; (3) 38 Cyc. 1930; (4) 26 Cyc. 1196; (5) 26 Cyc. 1186, 1213.