101 Minn. 325 | Minn. | 1907
Appellant recovered a verdict against respondent in the court below 'for the death of Ole Johnson, killed while operating an edger in respondent’s sawmill. The trial court granted respondent’s motion for judgment notwithstanding the verdict.
The order of the trial court cannot be sustained, unless it conclusively appears from the evidence that respondent was not guilty of negligence in furnishing a defective or improperly guarded machine, or unless it appears that Johnson assumed the risk of operating the edger in its defective condition, or was guilty of contributory negligence.
The edger in question was of the standard type, manufactured for the purpose of sawing off the edges of lumber. Briefly stated, it consists of two circular saws hung contiguous to a frame in such a way that, ■b)'' means of levers, they may be adjusted and operated by the edger-man, who stands at the end of the table, about eleven feet distant from the saws. The boards, or “cants,” having been placed on the table, the edgerman pushes them along over a spiked and under a smooth roller to the saws, which hang on the opposite side of the frame. After ¡the saws have been properly adjusted, the boards are carried forward by means of rollers and, when sawed, delivered at the opposite end of the machine. As constructed, there is a slot, or opening, in the frame of the edger about two inches wide and thirty inches long, and through
According to the evidence it was not unusual for small pieces of '.'boards and knots to be thrown back through the opening, to some ex-tent endangering the men working in front of the table. As manufactured and sent into the market, such machines are not furnished with .a guard, and it is conceded that something of an opening is necessary to enable the edgerman to look at the saws as he adjusts them. One of -•the foremen, Binger, in the employ of respondent when Johnson was -employed there, but before this accident, testified that before he came to ^respondent’s mill he was foreman in a Minneapolis mill, and in order to reduce the risk of injury to the men who worked at the edger he ■caused a board to be bolted to the framework of the machine in such a rmanner as to close about one-half the space, and that in the spring of 1902, in respondent’s mill, he put such a board on the edger in question. It appears that such guard remained on for about two seasons and a ‘half, when it was shattered by the recoiling pieces of timber, and was -not replaced.
It does not follow that the machine in this case was properly guard»ed, without the board, simply because it was one of the standard type, ■manufactured for such purpose. The dangers of operating a machine, :and whether it can be guarded, so that it will be more safe than as -manufactured, can only be • determined by experience. An employer •cannot be excused from operating a machine, although of standard -type, when a reasonable amount of experience and observation has ■developed the fact that it is inherently dangerous, and can be made -reasonably safe by attaching safeguard appliances.
From the evidence in this case, it clearly appears that the opening in the machine in question was larger than necessary, and. that it was exceedingly dangerous to operators, and that experience demonstrated the. -feasibility of materially reducing the chance of injury by using a board -to lessen the opening. Such being the fact, respondent was guilty of ^negligence in permitting the machine to be used without a guard.
The learned trial judge seemed to have been impressed with the fact that Johnson assumed the risk because he remained and operated the edger /for a season and a half after the removal of the board, knowing-that pieces of timber were likely to come back through the opening. There are some features of the.case strongly supporting this conclusion but to do so it is necessary to give full credence to the testimony of the witnesses called on behalf of respondent as to what was said by Johnson. In a case of this kind, when the principal party involved is removed by death, and his testimony unavailable, the court should proceed, with great caution in taking for granted the statements of witnesses who-are likely to be influenced by their surroundings. Under such circumstances, the credibility of the witnesses is of great importance, and in this case, unless it appears conclusively from the evidence that the board was left-off as a result’ of the special request of Johnson, and that he appreciated, the risk of operating the machine without it, the order o£ the trial court cannot be sustained.
Order reversed, with directions to enter judgment for appellant for the amount of the verdict.