| Or. | Jul 29, 1913
delivered the opinion of the court.
1. At the close of plaintiff’s case the defendant interposed a motion for nonsuit, specifying as grounds therefor that the testimony was insufficient to show any act of negligence on the part of the defendant which resulted in plaintiff’s injury; that the testimony shows that plaintiff was in absolute charge of the machinery, and that his conduct in getting upon the boxes and standing in a position where his clothing was caught, when he had power to close down the machinery, amounted to contributory negligence; further, that all dangers incident to the repair or adjustment of the shaft in question, as the plaintiff attempted to make them, were obvious, open and apparent to any person of ordinary intelligence, and that the plaintiff knew and fully realized the danger of the situation. In connection with the motion for nonsuit, the defendant asked the court to pass upon the question of contributory negligence as a matter of law, and not to submit the same to the consideration of a jury. The case turns upon whether or not the court erred in overruling the motion for nonsuit and in not deciding as a matter of law that the plaintiff was guilty of contributory negligence.
The testimony tends to show, on the part of the plaintiff, that the defendant had proposed to install an additional washing machine in its plant, which was to be connected with the main line of overhead shaft
The principal question presented for our consideration is whether or not, under these circumstances, the court should have declared as a matter of law that the plaintiff was guilty of contributory negligence so as to defeat his recovery. It is urged by the defendant that an employee who chooses a dangerous place to work where a safe one is open to him, or where there is a safe way and a dangerous way to perform the work, and the employee whose business it is to do the work voluntarily chooses the dangerous one and is injured, he cannot recover. This may be all true if the facts justify such a conclusion. But there is testimony here to the effect that the plaintiff was required to adjust machinery and make repairs without stopping it, so that it still is a question for the jury to determine whether or not there were two ways in which he might have accomplished his task.
2. The defendant also argues that the plaintiff assumed the risk arising naturally from his employment and the hazards which are apparent or which he knows and appreciates. But the question is whether under these circumstances the plaintiff did know or appreciate the hazards to which he was exposed in adjusting the shaft. He had a right to rely upon the principle that the master had furnished him a reasonably safe place in which to perform his duties. He said he did not himself know anything of the condition of the piece of shafting which had been installed, and, being required to repair it while it was in motion, he could not see that it was jagged at the end so as to be liable to catch his clothing.
3. The ultimate question to be determined by the jury as to the allegation of plaintiff’s contributory negligence was whether or not he acted as a reasonably prudent man would act under like circumstances
Given the hypothesis that the plaintiff was required to perform his work while the machinery was in motion, that he did not know the condition of the newly installed shafting, and could not know it on account of it being in rapid motion, the court could not as a matter of law say that he was guilty of contributory negligence in undertaking to adjust it under those circumstances. The conditions surrounding the performance of labor are so numerous, varied and complex that it is impossible to lay down specific rules of law to govern every case in advance. Manifestly, all the court can do is to enunciate general principles to guide the jury. The standard of conduct imputed to plaintiff in such cases is that ordinarily adopted by a reasonably prudent man in his situation and with his knowledge under like circumstances. Whether he did so act or not must be determined by the jury, unless the testimony is so plain against him that no reasonable man could arrive at any other conclusion than that he himself was negligent in a way contributing to his own injury. It is common knowledge that engineers work about machinery and often make important adjustments of it while it is in motion. The case here is strengthened by testimony to the effect that the plaintiff was required to do so by the terms of his employment. Honest men may reasonably differ in opinion about whether or not he departed from the legal standard of care in this instance; hence the Circuit Court was right in refusing to take the case from the jury.
The judgment is affirmed. Affirmed.