45 Minn. 338 | Minn. | 1891
Defendant owned and operated an elevator in -connection with a ñouring-mill, and the plaintiff was in his employment as foreman of the elevator. On the first floor of the elevator, was a narrow passage-way between the bins, under the floor of which ran what is called the “conveyor,” an iron screw revolving with great rapidity when in operation, used to convey the grain to what are called the “elevator legs.” At places directly over the conveyor, boards, 14 inches wide, were fitted into the floor, leaving an even surface, but left unfastened so that they could be lifted out and the conveyor exposed whenever occasion might require. When these boards were in place, the passage-way was safe, but, if one of them was left out, it rendered the passage dangerous to any one passing along it; the danger being that he might step into the opening upon the conveyor. The rule of the elevator was that any one lifting out one of these boards should replace it before leaving; and this rule had always been observed prior to the occasion on which the injury for which the action is brought occurred. The only danger from this condition
If it were necessary to consider the questions of the defendant’s negligence and of contributory negligence on the part of plaintiff, it would be difficult to sustain the verdict; but we do not deem it necessary, for on another point the evidence falls short of making a case for the plaintiff. He, having continued in the employment with full knowledge of whatever danger there was to those employed about the elevator from the condition of the passage-way and the conveyor, must be taken to have voluntarily assumed the risks incident to the employment and that condition, unless the evidence reasonably tends to show facts that except the case from the operation of that rule. A servant is relieved from being held to have assumed the risks where the master has induced him to continue in the employment by a promise to remedy the defects creating the danger, unless where the danger is so imminent and immediate that an ordinarily prudent man would refuse to continue until the defects can be removed; and the plaintiff attempted on the trial to bring his case within that exception. There was no evidence of any such promise by the defendant
Order reversed.
Vanderburgh, J., took no part in this case.