143 N.W. 332 | S.D. | 1913
This action was brought for the recovery of damages occasioned by a personal injury received by plaintiff while 'in the defendant’s employ. The defendant was running a butcher shop in Sioux Falls, and, in collection with this business, he had a machine for the manufacture of sausage. This machine was fastened to a bench and consisted of a horizontal cylinder, inside of which was a spiral shaped blade or auger, which revolved in
The plaintiff, who was a young man 23 years of age, entered the employ of the-defendant about the middle of September, 1909. He had worked around.a meat market the greater part of the time siijce he was 14 years old; he had driven delivery wagon, helped at slaughtering, trimmed meat, and did genera! work around a meat market, but did not pretend to be an experienced butcher or expert sausage maker. He had operated a sausage machine, to some extent, in a shop where he had worked
Prior to the employment of plaintiff, there had been used by defendant, or his employees with his knowledge, a wooden mallet, or follower, for the purpose of pressing the meat into the machine. This was a piece of wood, six or eight inches in length, shaped like a potato masher, and could be used to press the meat into the machine without danger to the -hand; and, so far as appears from the evidence, plaintiff could have done as much, and
Plaintiff continued in the employment of the defendant for a period of six months. He acted as general assistant around the shop and, among other duties, ran the sausage machine at intervals of probably an hour at a time once or twice a week all the time he was there. Defendant never explained the dangerous character of the machine to plaintiff, nor the fact that, if he allowed his fingers to come in contact with the auger, it would probably draw his whole hand into the cylinder, nor 'cautioned him in regard to the care necessary to be exercised in order to avoid injury. The accident complained of occurred while plaintiff was operating the sausage machine in the usual manner. The thumb on his right hand was caught by the auger in the cylinder and, before it could be stopped, his whole hand was drawn into the cylinder and so badly mangled that it had to be amputated at or above the wrist. When his hand was caught, -he attempted to throw off the belt with the other hand and in that way stop the machine, but he was thrown over on his left side onto the bench and was unable to remove the belt or to extricate himself until the arrival of fellow workmen from an adjoining room, who stopped the machine and released him. The trial resulted in a verdict and judgment for the defendant, and, the court having denied plaintiff’s motion for a new ‘trial, he appeals to this court. ■
Plaintiff contends that his injury was the result of negligence on the part of the defendant, which negligence consisted in defendant’s failure to provide plaintiff with safe appliances and with a safe place in which to work and in defendant’s failure to properly instruct him and caution him as to the nature and extent of the danger incident .to the operation of the machine. The defendant’s defense was a general denial, the assumption of risk, and contributory negligence on the part of the plaintiff. The latter two defenses dispose of the first.
At the close of the trial, the court, at the request of the defendant, submitted to the jury the following interrogatories: (i) “Was the plaintiff, at the time he was injured, a person of or
It is claimed by the plaintiff, and borne out by the record, that there was no evidence whatever in the case to warrant the submission of the question of contributory negligence to the jury. Defendant in his answer alleged that plaintiff’s injury was occasioned by his own negligence and carelessness in operating the ■sausage machine, but there was no evidence whatever in support of this allegation. ' The evidence showed that defendant directed plaintiff to operate this machine; that plaintiff had seen defendant
This inference, however, is not a legal one, and it has been decided by this court that it is not to be indulged in any case. In Whaley et al. v. Vidal et al., 27 S. D. 642, 132 N. W. 242, a case brought to recover damages for injuries sustained at a railroad crossing, this court said: “In the absence of evidence to the contrary, the law presumes that the deceased exercised such degree of care and caution as the circumstances and the law required, and the burden of proving that he did not rests upon the defendants throughout the case and is a question for the jury.” And again, on page 644 of 27 S. D., on page 250 of 132 N. W., the court say: “It seems to be the settled -law that contributory negligence is an affirmative defense in a case where the defendant has been shown to be guilty of negligence and must be proven by the defendant either by direct evidence or by proof of circumstances from which only the inference of contributory negligence could be drawn. And where there is a failure of evidence proving or tending to prove the party injured did not stop, look, and listen, the jury are required to presume that the party injured did exercise ordinary care and was not guilty of contributory negligence.” Wright v. Sioux Falls Traction System, 28 S. D. 379, 133 N. W. 696.
- Respondent contends in his brief that the two instructions last quoted were not excepted to by appellant, and that for that reason the assignment specifying these two instructions as error should be stricken from the record and not considered on this appeal. We have carefully examined, the exceptions and assignments called to our attention by this motion. While the speci-cations taken -to these instructions are by no means as specific as they should have been, still appellant’s first and fifth exceptions to the instructions of the court are sufficient to suggest the objectionable matter contained in these two instructions and to porperly call them to the attention of the trial court on the hearing for a new trial. This being so, they are properly before this court for consideration.
Tested by the above rule, the defendant in the case at bar was under obligations to explain to the plaintiff the nature and the extent of the dangers to which he was exposed, and if he knew of, and could have readily attained, any contrivance or appliance that would have rendered plaintiff’s labor less hazardous, it was his legal duty to provide them. Defendant was in a position to possess and, based upon his experience with the machine in question, did possess superior knowledge as to the dangers to which plaintiff was exposed, and it was his duty to explain them to plaintiff and, if it could have been done with reasonable diligence and with appliances known to him and “readily attainable,” to have obviated them. Defendant’s occupation was a useful and lawful one, but this does not excuse him from taking all reasonable precaution to protect his employes from injury to life or limb. The
“The defendant in his answer seeks to avoid liability for the claim of the plaintiff herein of damages occasioned by the loss of his right hand while employed by the defendant in operating- a certain sausage machine described in the proceedings in this action upon the ground that the said plaintiff, by accepting employment in the use of said machine, assumed the risk of all ordinary dangers incident to his said employment. You are hereby instructed that the burden of proof of maintaining said defense is upon the defendant, and that in order to maintain said defense and justify a verdict in his favor, based thereon, he must convince you, by a preponderance of the. evidence, that the plaintiff, at the time of his employment and at the time of the accident, not only knew the condition of said machinery, whereby the same was rendered dangerous, if it appears that it was dangerous, but also that he knew and understood and appreciated the danger, or else that the danger was so obvious that his appreciation of it is a necessary inference.”
“If you find, by a preponderance of the evidence, that the said defendant was guilty of negligence in failing to furnish safe machinery and appliances and a safe place for the plaintiff to work, or in failing to instruct or warn the plaintiff as to the*341 dangers incident to his employment, if you find there were such dangers, or in failing to inform the plaintiff of a safe method of operating the machine in question, if you find there was a safer way than that- in which the plaintiff was directed to operate such machine, then and in that case you would not be justified in finding that the plaintiff assumed the risk occasioned -by such negligence of the defendant unless you find that he knew and appreciated the same.”
These instructions, we believe, correctly state the'law and' are in accord with the general rule that, in order to preclude a servant from recovering for injuries caused by the use. of dangerous machinery, he must not only know of the dangerous character of such machinery but must also- appreciate the nature and extent of the danger to which he is exposed. These instructions were as favorable to the defendant as he was entitled to, under the facts as -disclosed by the record in this case, and the refusal to give them was error.
Because of the errors above pointed out, the judgment and order appealed from are reversed, and a new trial ordered.