128 Mich. 43 | Mich. | 1901
Plaintiff was injured by a wabble saw upon which he was working in defendant’s factory. It appears that formerly the defendant had used a single saw for grooving cleats for end boards to wagon boxes. Finding that this single saw did not do the work properly, the foreman of defendant’s shop, one John Belz, devised this wabble saw, which was made by placing’ two saws together side by side. This did not work satisfactorily, as dust got between them; and finally he put a pasteboard washer between the saws, about three-sixteenths of an inch in thickness. The saw thus constructed was run in defendant’s shop occasionally in cutting these grooves, being operated mostly by the foreman and by a workman
The plaintiff was a man 51 years of age, who had worked as a carpenter and joiner for about 30 years, and had worked for the defendant, off and on, since 1895. He worked first on a boring machine, then on a planer, and then on a jointer. He had never worked on the wabble saw until the day of his injury, September 12, 1898. The foreman then put him to work on that saw. He testified that the foreman told him how to work it; that he set the saw up for him, and ran a piece over it himself, measured the depth of the groove, and said it was all right, and that plaintiff should go- ahead with the work; that the foreman came back a number of times to measure the groove, and cautioned him to keep the piece against the gauge; that the foreman did not tell him anything about managing the saw; that the table was an-ordinary ripsaw table. He was asked:
“Q. Had you discovered before you were injured that it was possible for a piece to become wedged in there ?
“A. No, sir; I had no idea of such a thing. The thought never occurred to me. I had never seen a saw of this design used for grooving. The larger the saws, the*46 more they would spring out and let a larger sliver get between them, and the liability of slivers getting between them would be increased. The saw was made to wabble by placing a wedge on either side, so as to throw it out of true. It wabbled seven-eighths of an inch.”
It appears that, after plaintiff had been at work for about five or sis hours, a sliver caught in the saw, threw the piece of board upon which he was working back, and, letting his hand drop on the saw, injured it severely, cutting off two fingers and injuring his thumb.
Defendant’s foreman testified that he put the plaintiff at work at the saw; that there was no other man he could spare that could run it; that it required a man of good sense to run it, and that, if he had not got sense, he had better keep away from it. He was asked:
“Q. Did you not always, when you put a man on a dangerous machine, give him instructions with reference to the probable danger ?
“ A. If a man thinks a machine is dangerous, he must not go near it. If I think a man is not fit for that machine, and does not know the danger, I won’t put him on there.
“ Q. Then you never instruct anybody that you put on a machine as to its danger ?
“ A. Well, I do sometimes, if I think it necessary; if I think he don’t know anything about it.”
It is contended by counsel for defendant that the case alleged in the declaration is not sustained by the proofs. The first count of the declaration alleges that pieces of timber being worked would become wedged or fastened between the saws, thereby throwing it from under the hand of the operator and the hand upon the saws; that of all this the defendant had notice, and failed to warn the plaintiff of such danger. There was considerable testimony showing that a saw constructed in the way this one was was liable to hook into the timber, and throw the timber operated on back from under the hand; that the teeth had too much rake and made slivers; that it was a dangerous saw to operate; that, being made of two saws, the
It is claimed that the plaintiff assumed the risk in engaging to work on this saw. We cannot concur in this. It is true that he knew before that they had been using a single saw to do this kind of work, and knew when he went to work that they had changed it to a double saw. He had seen the foreman grooving cleats upon this saw before he went to work, but he testified that he did not know of its dangerous character.
The testimony of the plaintiff tended to show that the table was defective, in that it was not firm and rigid; that it was supported by strips, with no device to hold them in position, and that they would work out, and permit the top of the table to drop down; and plaintiff testified that, when these strips would drop down, it would cut the grooves too deep; that, when it occurred, he would put the strips back in place; that, if he saw a piece coming out, he would put it back in place. It is the contention of counsel for defendant that plaintiff was guilty of contributory negligence in using this table knowing its defective condition. We think the question of the negligence of defendant and of the contributory negligence of the plaintiff was fully and fairly submitted to the jury under the charge of the court.
“It was the plaintiff’s duty to exercise care to avoid injury. He was under as great obligation to provide for his own safety from dangers known to him or discoverable by ordinary care on his part as the defendant was to provide for him. It was his duty to learn the danger. He could not go blindly to his work where danger existed. He was bound to inform himself and observe and take such knowledge of danger as could have been attained by observation. If he failed to do so, the risk was his own. And, although you find that the saw and table referred to were improperly constructed or adjusted, your verdict must be for the defendant, unless you find by a preponderance of the evidence that such defective construction or adjustment would not, by ordinary, careful observation, have been discovered.”
Upon an examination of the whole record, we are satisfied that the case was fairly tried and submitted to the jury. We find no error. The judgment below must bo affirmed.