94 Wis. 596 | Wis. | 1896
The negligence claimed by the plaintiff is the failure of the defendant to furnish him with a safe tool for doing the work which it set him to do, yet it does not appear that it had not furnished, nor that there were not at the time, perfect pinch bars in their proper places in the roundhouse ready for his selection and use. If they had been provided and were at hand, subject to his selection, it would seem to be in some sense his own fault and at his own risk, if he selected a defective one; for he was an experienced machinist, and had worked with pinch bars, and knew of their construction and use. It is the duty of the master' to the servant, and the implied contract between them, that the master will furnish proper, perfect, and adequate machinery or tools and appliances for the pioposed work. It is supposed that the master has a better and more comprehensive knowledge of the machinery and materials to be used than the servant. So the servant has a claim iipon the master for protection against the use of defective or improper machinery or appliances while he is engaged in the performance of the service required of him. -But the rule has no application where the servant has knowledge, equal with the master, of the machinery or appliances employed in the performance of the work devolved upon him, or when, by reasonable attention, he might have such knowledge. Klatt v. N. C. Foster L. Co. 92 Wis. 622. This is especially true when the servant has the selection of the tools and appliances with which his work is to be done. The adult servant is presumed to possess ordinary intelligence, judgment, and discretion to appreciate such dangers incident to his employment as are open and obvious, and knowledge of it on his part will be presumed, or imputed to him as matter of law. Luebke v. Berlin Machine Works, 88 Wis. 442-448. Manifestly, the presumption is strengthened when the servant is also an expert in his employment, and familiar
The lever is one of the simplest and most easily understood of'the mechanical powers. It requires little special training to qualify one for using it efficiently and safely. About the mere use of the lever itself there can well be no occult or hidden danger. A pinch bar is a simple mechanical tool, and its use is simple and easily understood. But it is said that, if the heel becomes dulled, it may slip upon the rail. Can it be that a skilled machinist of twenty years’ experience should be ignorant of a property of iron so manifest to one of his calling and experience? That he was not ignorant of the possible action of a dull pinch bar, his swift inspection of the bar after his accident is amply suggestive. The defendant’s fault was not that it failed to furnish sufficient and safe tools for the work in hand. It consisted, rather, in permitting inadvertently a defective tool to be where the plaintiff could get it. There were safe tools at •command and men to do the work within his call.. By reasonable attention he would have learned the condition of the bar. By inattention to its condition he took upon himself the risk of there being some defect in it. The consequences of the risk he took are his misfortune. It cannot well be shifted over onto the defendant. If he had observed and discovered the defect, it was negligence to use the bar. If he did not observe and discover the defect, he was negligent in failing to observe and discover it. Such negligence
By the Court.— The judgment of the superior court of Milwaukee county is affirmed.