149 F. 680 | 8th Cir. | 1906
after stating the case as above, delivered the opinion of the court.
The defendant was engaged in a hazardous business. It owed a duty to its employes to exercise all reasonable care to provide them with suitable and reasonably safe machinery and instrumentalities with which to do their work.
The evidence, we think, was sufficient to go to- the jury on the issue of negligence as charged. It tended to show that defendant did not exercise reasonable care in keeping the log carriage well in hand or sufficiently under control during the preliminary period of speeding up its mill, to prevent its insidious and dangerous movement along the track where employes were likely to be. There was also substantial evidence tending to show that the decedent complained to the superintendent of defendant company about the dangerous condition of the machinery, and particularly about the sudden and uncontrolled movement of the log carriage, and secured a promise from him to repair the same. The last mentioned facts, unless the risk of remaining was so obviously and imminently dangerous that a person of ordinary prudence would not have taken it while the promised repairs were being made, warranted the decedent in continuing to work for the defendant for a time thereafter reasonably sufficient to enable it to make good the promise, without assuming the risks ordinarily incident to the use of known defective machinery (Hough v. Texas Pacific R. Co., 100 U. S. 213, 225, 25 L. Ed. 612; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946; Northern Pacific Railroad Co. v. Babcock, 154 U. S. 190, 200, 14 Sup. Ct. 978, 38 L. Ed. 958; Cudahy Packing Co. v. Skoumal, 60 C. C. A. 306, 125 Fed. 470, 473; Homestake Min. Co. v. Fullerton, 16 C. C. A. 545, 69 Fed. 923; Roccia v. Black Diamond Coal Min. Co., 57 C. C. A. 567, 121 Fed. 451); hut they did not relieve him from the obligation to exercise reasonable care and precaution for his own safety while so continuing to perform the work.
Defenses predicated upon assumption of risk and contributory negligence are essentially different. Choctaw & Oklahoma, etc., R. R.
In District of Columbia v. McElligott, supra, the Supreme Court, in commenting upon the care required of a person situated like the ‘decedent, said:
.“If he exposed himself to dangers that were so threatening or obvious as ••likely to cause injury at any moment, he would, notwithstanding any promises or assurances of the district supervisor of the character alleged, be guilty of such contributory negligence as would defeat his claim for injuries so received.”
In St. Louis Cordage Co. v. Miller, supra, this court, after an-nouncing the general doctrine of assumption of risk in ordinary cases, and calling attention to the exception relieving an employe from its obligation after making complaint and securing a promise of reparation said:
: “Of course cases which fall under the exception are not governed by the •rule, but the only defense remaining in such cases is that of contributory negligence.”
And in Homestake Min. Co. v. Fullerton, supra, this court said the rule which permits an employe to recover in cases coming within the exception is subject to the proviso:
“That the servant exercised due care and that the defect complained of did not render the machinery so imminently and immediately dangerous that he should have declined to use it at all until it was repaired.”
See, also, 1 Labatt on Master & Servant, § 432.
In the light of the foregoing exposition of the law, we cannot agree with’ plaintiff’s counsel that the complaint of defective machinery and the promise by defendant to repair it rendered it liable in this action— .notwithstanding any negligence of the decedent. Such is not the law. 'He might have been' relieved from the assumption of ordinary risks 'attendant upon the úse of defective machinery, but he still remained under the obligation of exercising reasonable care for his own safety.
^ The rule defining reasonable care in any given case to be that care .yrijich ordinarily prudent persons commonly exercise in like circum's'tánces is probably a sufficient generalization, provided emphasis is placed, upon’ -the last italicized words.. The circumstances surrounding a; person at the time of his injury naturally, as well as a matter
Tested, by the rule just announced in any or all its phases, we entertain no doubt about the contributory negligence of the decedent in this case. Conceding to him the full right of going to the head sawyer’s side of the pulleys, and conceding that it was his duty to clear that side of the rim of the upper pulley as well as his own, both of which are disputed by defendant, his method of doing the work according to the undisputed evidence was peculiar to himself. There is no substantial proof that any one else ever undertook to dean that side of the rim when standing as and where the decedent did. There is satisfactory proof that no head sawyer whose employment expressly comprehended that duty ever undertook to do it that way. Only one witness out of many who were examined testified that he had ever seen decedent do it in that way, and this witness said that it could have been done some other way, but that it appeared to be the easier way to, do it by standing in the place where decedent stood. It must be borne in mind that the cleaning could not have been done when the saw was not in motion. The pulley necessarily had to revolve in order to clean the rim, and with its .revolution the saw was also necessarily in motion, so that any proximity to the saw while cleaning the rim was potentially dangerous.
Counsel for plaintiff ask us to say that, because of the promise to repair made two or three days before his death, the decedent had a right to assume that the machinery had, during those two or-three days, been so repaired as to prevent the creeping motion of the carriage. Such repairs probably would have involved a reconstruction of the valves leading into the cylinder, and possibly of the pipes leading from the boiler to the cylinder, and of the rod leading from the piston to the carriage, and any of these repairs probably wou'd have required a general overhauling of the mill under and upon which the connections between the boiler and the carriage were located. It is inconceivable that this work could have been done without attracting general attention; but whether the repairs might have been made in two or three days or not is wide of the mark. Considering the imminent peril and danger of doing what the decedent did unless the repairs had been made, it was the height of recklessness to blindly assume without inquiry, and .in face of the improbability of their being done without his knowledge, that they had been made, within the short period of time mentioned, and on such mere assumption to have incurred the great risk which he did.
After a careful consideration of all the evidence, and of all the propositions of law contended for by learned counsel for the plaintiff, we are constrained to say that contributory negligence was so apparent from all the evidence that the Circuit Court erred in not instructing the jury to find for the defendant. The judgment must be reversed, and the cause remanded, with instructions to grant a new trial; and it is so ordered.