62 Wis. 108 | Wis. | 1885
In Strahlendorf v. Rosenthal, 30 Wis. 674; Naylor v. C. & N. W. R’y Co. 53 Wis. 661; Behm v. Armour, 58 Wis. 1; and in other cases in this court, the rule of law is laid down and applied that if a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against his employer for the injury merely because the business might have been carried on in a safer mode. But if there are increased perils in the business by reason of the use of defective appliances, or otherwise, known to the master, or for which he is responsible, and unknown to the servant, if the latter is injured thereby, and is free from negligence, the master is liable. These rules govern the present case.
It is not claimed in this case that the defendants failed to employ competent workmen to put in the steam-pipe. There is no testimony tending to show any failure on their part in this respect. Neither is there any testimony tending to show that by the exercise of reasonable care the defendants ought to have discovered the defect. It is probable that they or any one else might have seen that a portion of the screw had not been used; but that would'not necessarily disclose how far the screw was inserted into the cylinder. That would depend upon the length of the screw. Moreover, the pipe was screwed in sufficiently to make it answer the purposes for which it was. intended; and the mechanic who did the work testified that it was done in a proper and
There is no testimony in this record showing or tending to show that either of the defendants had any knowledge whatever that the section of the steam-pipe in question had been insufficiently screwed into the cylinder. True, the defendant LeefeldA superintended the putting ■ of the machinery, including such pipe, into the mill, but there is no evidence that he was there when the pipe was put in, or gave any specific directions in regard to it. The fact of his superintendence, standing alone as it does, is entirely insufficient to support a finding that he knew the condition in which the pipe was left.
"We may assume, therefore (but do not so decide), that all of the conditions essential to a recovery existed in this case, with the single exception that the alleged defect was or ought to have been known to the defendants. But one of these conditions is essential to a recovery, and the absence of both in the present case is fatal to the action.
Behm v. Armour, 58 Wis. 1, is relied upon by the learned counsel for the plaintiff to sustain this action; but it comes far short of doing so. In that case the question was one of pleading onty, and it was held that the complaint sufficiently charged the defendants with negligence, which caused the injury complained of. No rule of law was there adjudicated which aids the present plaintiff.
What the rule would be had an employee of defendants been injured when the machinery was in operation, by reason of the alleged defect, is not determined. We only hold that under the special circumstances of this case, for the reasons above stated, the defendants are not liable.
We conclude that the plaintiff was properly nonsuited.
By the Court.— Judgment affirmed.