118 P. 764 | Mont. | 1911
delivered the opinion of the court.
This action was brought to recover damages for personal injuries. At the conclusion of plaintiff’s ease in chief a motion for nonsuit was interposed and overruled. Defendants elected to stand upon their motion and declined to introduce any testimony. The cause was submitted to a jury, which returned a verdict for plaintiff, and judgment was rendered and entered thereon, from which judgment, and an order denying their motion for a new trial, the defendants have appealed.
Aside from a physician, who testified to the extent of plaintiff’s injury, and an insurance adjuster, who produced the standard mortality tables and testified to the cost of annuities, the only witnesses introduced were the plaintiff and one Bozo Nikcevich. Each of these witnesses testified through an interpreter. ' The record recites that it contains all of the evidence taken upon the trial. This recital must be accepted as true; but as presented to us the evidence is so brief, so fragmentary,
So far as we can gather the facts from the evidence and from the admissions in the pleadings, they are substantially the following: The plaintiff, a native of Montenegro, thirty-six years of age, was employed by the defendant smelting company to work in its smelting and refining plant at East Helena. It appears that the ore was passed through a breaker, and was then elevated and passed through a crusher, a machine consisting of rollers of some kind which revolve toward each other. It frequently happened that when the ore came to the crusher there were pieces of rock that, instead of going through the crusher as intended, would play upon the rollers, being so large or so shaped that the rollers would not grasp them readily, and it became necessary to force them between the rollers, or, if this could not be done, to remove them. The rollers were incased in a sort of box, with a covering. When a rock became lodged, the covering was raised, water poured on the rollers, and by means of a wooden stick small pieces of ore were forced about the refractory rock, and the whole made to go between the rollers, if possible. If, however, this result could not be attained, it became necessary to remove the rock with the stick, or, if not possible by that means, to have the machinery stopped and remove it by hand. The plaintiff had been employed about the smelting works for some two years or more. For about three months immediately prior to the date of his injury he was engaged in running ore cars in the room where the crusher, upon which he was injured, was situated. On February 8, 1909, he was promoted, his wages increased, and he was given work as a shoveler. His duties required him to shovel ore into the breaker, and, whenever a rock became lodged on the rollers of the crusher, to force it through or remove it. At the time he assumed this
In charging the jury the- court undertook to analyze the pleadings and state the issues. There are not any objections made to the instructions given, and we shall adopt, for the purposes of this appeal, the trial court’s theory of the pleadings. The plaintiff charged the defendant company and its foreman with negligence in the following particulars: (a) In directing plaintiff to remove the rock by means of a stick while the machinery was in motion, instead of stopping the machinery; (b) in failing to warn plaintiff of the danger of attempting to remove the rock from the rollers while the machinery was in motion; and (c) in furnishing plaintiff with a defective appliance with which to work. Each defendant denied negligence, and the defendant company pleaded contributory negligence and assumption of risk. The specifications of error are directed to the insufficiency of the evidence and the refusal of the trial court to .give defendants’ offered instruction No. 5.
The plaintiff urges upon us two propositions: (1) “A master
But there is a further and conclusive answer to the plaintiff’s contentions. There is not any allegation in the complaint
The general rule of law defining the duty of the master to warn his servant and the limitation placed upon that rule are aptly stated by Thompson in his Commentaries on the Law of Negligence, as follows:. “ Generally speaking, an employer is
2. The third ground of complaint is that the defendant furnished plaintiff a defective appliance with which to do his work. There is not any complaint made that the plaintiff was required to use a wooden stick. So far as disclosed, a stick was a perfectly proper instrumentality and one well adapted to the use intended. The charge of negligence, however, is found in the allegation that the particular stick with which the plaintiff attempted to do his work was defective in this: “That the surface thereof was roughened and splintered at the point where it was grasped by the right hand of plaintiff, and that by reason of said roughened and splintered condition of the surface of said stick the glove of plaintiff, which was upon his right hand at
It is alleged that at the time the injury occurred the defendants knew of the defective condition of thé stick. It appears that there were other ore-crushers in use in the same building, and that defendants furnished a number of these sticks for the use of the several shovelers. It, does not appear whether this particular stick in question was in a defective condition when first furnished by defendants, or whether it became unsafe through use; and as negligence will not be presumed, but must be made to appear, the negligence, if any, must be predicated upon the failure of defendants to use reasonable care to see that the appliance was kept reasonably safe for the intended use at the time the accident occurred, and this involves the question of inspection.
In Longpre v. Big Blackfoot Milling Co., 38 Mont. 99, 99 Pac. 131, this court, discussing the question now under consideration, said: “Among the particular duties incumbent upon him [the master] is that of inspection of machinery and appliances to discover defects in them, both .at the time of furnishing them and during the course of the employment; for this is the only means by which he may guard the safety of those employed by him in the use of them. * * * But it is not always absolute. It is not the duty of a railroad company or other persons engaged in great industrial enterprises to inspect, much less to test, every tool or appliance put into the hands of an employee. This duty arises only when the appliance is of such a character that a man of ordinary prudence would, under the same circumstances, make an inspection as a precaution against injury to his servant. The master is not required to inspect simple appliances, such as hammers, saws, spades, hoes, lanterns, push sticks, and the like, the character and use of which are
There is not any contention made that plaintiff was required to act in haste, or that he did not have an opportunity to inspect the stick with which he undertook to do his work. On the contrary, the evidence seems to warrant the conclusion that
It will not do for plaintiff to insist that he was so far deficient in understanding that he could not detect the roughness or splintery condition of the stick. His own testimony discloses that he did not have any difficulty whatever in discovering the defects when they were called to his attention by his glove being caught on the stick. He says that he did not discover the defect until that time, but there is not any suggestion in the evidence that he ever gave any attention to the stick he selected. The complete description of this instrument as given in the record is a pine stick three feet long, an inch wide, and half an inch thick. If it was not a simple tool or appliance, then we are unable to imagine what application the term “simple” can have when used to characterize the instrumentalities of any occupation. In the Lcmgpre Case this court did not go further than to hold that the .duty of inspection is not absolute; but, following the doctrine announced in that case and the cases therein cited, we hold that there was not any negligence shown in the failure of these defendants to inspect this stick, and that the trial court erred in refusing to give defendants’ offered instruction No. 5, which announced the correct rule of law applicable in this particular instance. Of the courts holding to the view we have expressed, some justify their conclusion upon the theory that, as to such simple tools or appliances, the servant assumes the risk of their use; others, upon the theory that failure to inspect such tools is not alone sufficient evidence of
The judgment and order are reversed, and the cause is remanded to the district court, with directions to set aside the judgment and dismiss the action.
Reversed and remanded.