95 Wis. 6 | Wis. | 1897
The jury found specially, among other things, that the saw was defective, to the knowledge of John Blank, who was charged with the duty of seeing that it was kept in proper condition; that John Arndt was the acting foreman; that such foreman, with knowledge of such defect, directed plaintiff and his associates to run one heat, informing them that he would then have the saw changed; that plaintiff went to work relying upon such promise; that defendant was guilty of negligence which proximately contributed to the injury; that-plaintiff was not guilty of any. such negligence; and that he did not have sufficient knowledge and experience to enable him to know the risk of working With the defective saw prior to his injury. The verdict' was challenged as contrary to the evidence, and the ruling-of the circuit court in that regard, among others, is before-us for review.
That the saw was cracked and defective, to the knowledge of plaintiff, appears clearly from the evidence, and is-alleged in the complaint. The proof shows that he was a man of large experience with such machinery, and that he-had worked fourteen years in the mill where he was injured;, and four years in operating the machine where the accident occurred. His evidence, bearing on his knowledge of the danger, and his justification for working notwithstanding such danger, is substantially as follows: “ There were small rollers to carry the iron under the saw. Then the saw was
A person thirty-five years of age, and of fourteen years’ ■experience with machinery, circumstanced as plaintiff was, must be presumed to know the operation of natural laws, and the dangers which such a defect as the one in question would naturally suggest to a person of ordinary intelligence. Walsh v. St. P. & D. R. Co. 27 Minn. 367. Otherwise, the risk that would attend the employment of labor in many manufacturing industries would be so great as to render it impracticable to carry them on. This presumption is too strong to be rebutted, so as to warrant a verdict to the contrary, merely by the evidence of the person whose knowledge is in question that he did not know of the existence of a danger which was obvious to a person of ordinary intelligence, even though not an expert.
But the verdict of the jury is not only wrong, tested by the rule above stated, but the evidence affirmatively shows,
But it is said plaintiff did not assume the risk because the jury found that he protested against working with the defective saw, and was induced to continue his employment •by the promise of Apndt to change it as soon as one heat was worked off. The general doctrine is well established that if an employee continues in the employment of the
But, if the finding of the jury last reviewed could be sustained, the doctrine that an employee can rely upon the master’s promise to repair within a reasonable time, to rebut a charge that such employee assumed the risk, is by no means without limitation. If the risk is so obvious and immediate that serious injury may probably result from a continuance •of the work, then the doctrine that the employee can proceed, relying upon the promise to repair or to remove the •danger, does not apply. Rothenberger v. N. W. C. M. Co. 57 Minn. 461. This exception to the exception, if we may call it such, is supported by several good reasons, among which are that it is not consistent with reasonable prudence for one to submit himself voluntarily to imminent danger of probable immediate serious injury, relying upon a mere promise on the part of anybody that such danger will be removed after a time; and further, that, when such danger' exists, there is no such thing as a reasonable time to repair, other than presently and before the Avork proceeds further. To be sure, there are respectable authorities that go so far-
It follows, from the foregoing, that in order to bring a case within the exception to the general rule, that the employee by continuing in the employment of the master with knowledge of defects in machinery at which he is employed assumes the risk attending such employment, it must be shown, not only that he called the master’s attention to such defects and in some way objected to assuming the risk, but that the master expressly or by implication promised the employee to remedy the same within a reasonable time, and
It follows, from the foregoing, that if the finding of the jury respecting the agreement to change the saw, and the continuance of the work by plaintiff relying thereon, could be sustained, if the danger yms obvious, immediate, constant, and the probable consequences the infliction of serious bodily injury upon plaintiff, it was negligence upon his part to rely upon such agreement. That such was the situation is too plain to admit of serious discussion. It does not require an expert, even, to understand that a saw four feet in diameter, running at a speed of 1,700 revolutions a minute, cracked three inches from the outside, when let down upon a large iron plate or bar and operated with sufficient force to cut it in two, is in danger of flying to pieces and seriously injuring all who may be in the vicinity. That a person of plaintiff’s experience with such a machine did not know of such danger is beyond comprehension. It was negligent to the point of recklessness to work 'with such a defective saw at all, under the circumstances. That brings the case clearly within the exception to the rule that a protest by the employee to continuing in the employment of the master because of the existence of some special risk attending it, a promise by the employer to remove the danger within a reasonable time, and a continuance of such employment in con
There are several errors assigned, not referred to, but the conclusion to which we have arrived renders it unnecessary to consider them.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.