125 Wis. 575 | Wis. | 1905
The duty of the master to furnish his servant with a reasonably safe working place, and reasonably safe tools and appliances with which- to do his work and keep the samé in repair, is elementary, and there was evidence that the machine which was being operated by the plaintiff at the time of the injury was defective, in that the punch did not descend squarely into the slot in the die,-but struck or “sheared” upon the side of the die in such manner as to throw the splinter of steel which struck the plaintiff in the eye, producing the 'injury complained of. The general rule is that the servant assumes the usual and ordinary risks of his employment; but before he can be held to have, assumed an unusual or extraordinary risk he must know, or have reasonable means of knowing, the precise danger to which he is exposed and which he thus assumes, and a mere vague surmise of the possibility of danger is not sufficient to warrant the court in taking the case from the jury. Dorsey v. Phillips & C. C. Co. 42 Wis. 583; Nadau v. White River L. Co. 76 Wis. 120, 43 N. W. 1135; Naylor v. C. & N. W. R. Co. 53 Wis. 661, 11 N. W. 24; Kennedy v. Lake Superior T. & T. R. Co. 93 Wis. 32, 66 N. W. 1137; Curtis v. C. & N. W. R. Co. 95 Wis. 460, 70 N. W. 665; Haley v. Jump River L. Co. 81 Wis. 412, 51 N. W. 321, 956; Colf v. C., St. P., M. & O. R. Co. 87 Wis. 273, 58 N. W. 408. Of course, if plaintiff knew, or ought reasonably to have known, that splinters would fly when the die was improperly set, and still continued in the employment and use of the machine knowing it was not properly set, he might be held to have assumed the risk. Where there is doubt whether the servant assumes the risk the question is for the jury.
The main controversy, therefore, in this case is whether the plaintiff assumed the risk. From the evidence adduced it does not appear as a matter of law that this defect was an open or obvious one, or one which the plaintiff knew, or by the exercise of ordinary care and prudence ought to have-known. Even if plaintiff might have known that some damage would result, such as the breaking of the punch in case it .was not properly set, it does not appear as matter of law that he was charged with knowledge of, or by the exercise of ordinary care and prudence could have known, the particular peril to which he was exposed. As appears from the facts stated, plaintiff was a painter and had had but little experience in the operation of machinery, and had no knowledge that the improper setting of the die would cause splinters of steel to fly, and was not warned of any danger in that regard, but, on the contrary, was assured by the foreman'that the machine was all right. It is true that if the defect was an open and obvious one, as in Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 60 N. W. 257, and of which the servant had eqxxal knowledge with the master, the former would not be justified in relying upon the assurance of safety by the master. But the case before us is far different. Here it cannot be said as. matter of law that the defect was an open and obvious one, or one which ordinarily would be appreciated by a man without experience, warning, or technical knowledge upon the subject. Upon these facts it cannot be said that assumption of risk on
By the Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.
