Larson v. Knapp, Stout & Co.

| Wis. | Jan 11, 1898

Winslow, J.

Conceding that the evidence tended to show actionable negligence on the part of the defendant, we are .still forced to conclude that the plaintiff assumed the risk, and hence cannot recover. It is true that the plaintiff was .a minor, but this fact does not necessarily make the question one for the jury. Where the facts are undisputed and the inferences certain, it may be a question of law for the ■court. Casey v. O., St. P., M. <& O. R. Co. 90 Wis. 113" court="Wis." date_filed="1895-04-03" href="https://app.midpage.ai/document/casey-v-chicago-st-paul-minneapolis--omaha-railway-co-8184825?utm_source=webapp" opinion_id="8184825">90 Wis. 113; LLerold v. Pjister, 92 Wis. 417" court="Wis." date_filed="1896-02-18" href="https://app.midpage.ai/document/herold-v-pfister-8185111?utm_source=webapp" opinion_id="8185111">92 Wis. 417. The facts were undisputed, .and the inferences certain, in the present case. The plaintiff had worked at the machine in question, or at a similar one, for two years, and knew all about it. lie knew the danger of a stick being caught upon the revolving saw from recent actual experience, and he had also seen such things happen in the mill daily, and he says that on that account he was as careful ¿s he could be. He also knew that there was a perfectly safe way by which the saw could be cleaned,— by stopping the machinery,- — and he knew that he was entitled to use this method, and had frequently used it. Knowing all these facts, and possessing average intelligence for his age, and having had two years’ experience in the business, there is no escape from the conclusion that he assumed the risk.

The promise to repair cannot be relied upon, because the plaintiff was not compelled to use this method, but had a perfectly safe way in which to do his work, of which he knew, but deliberately chose the dangerous way, the dangers of which he knew as well as any one could know.

The nonsuit was properly granted.

By the Court.— Judgment affirmed.