200 F. 936 | 7th Cir. | 1912
(after stating the facts as above).
In defense, defendant, among other evidence, introduced the testimony above referred to, controverting the statements of the five witnesses. What error might have been predicated upon the ruling of the court on that point, had defendant rested its case, so far as that' ruling was concerned, upon its exceptions taken thereto, need not be here stated. The record taken as a whole, without regard to the sequence of the introduction of evidence, clearly shows a submission to the jury by both parties of the question whether other carpenters employed by defendant were on prior occasions ordered to operate the saw when its use was required. Neither party was limited as to the evidence upon that point as bearing upon plaintiff’s statement that he was ordered to operate the saw and was not a volunteer. It was' competent for plaintiff to controvert the testimony of the foreman and
All these facts the jury were at liberty to find from the evidence, as well as the alleged fact that plaintiff was ordered to work with the saw.
There is nothing in the record to show that defendant took any steps to advise plaintiff of the danger incurred in the use of the saw, nor does it appear that its use was one of the risks assumed by him, or that the danger was obvious as danger to liis mind. It is a general rule of law that a master may not acquit himself of negligence without notifying an employé of the risks assumed in bis performance of his duties, if they are not patent — especially if he be unskilled. Reed v. Stockmeyer, 74 Fed. 186, 20 C. C. A. 381; Felton v. Girardy, 104 Fed. 127, 43 C. C. A. 439; Mountain Copper Co. v. Pierce, 136 Fed. 150, 69 C. C. A. 148; Wright v. Stanley, 119 Fed. 330, 56 C. C. A. 234.
Kven though he sees and knows the physical conditions, he may not understand them. There are a number of cases dealing with the operation of saws. They are held to be dangerous devices. Their working in contact with an object, as wood, is held to constitute an obscure danger in Hanson, v. Ludlow Mfg. Co., 162 Mass. 187, 38 N. E. 363.
“The particular clanger caused by the tendency of a board when warped to spring hack is not, as a matter of law, obvious to an inexperienced servant.” Wheeler v. Wason Mfg. Co., 335 Mass. 204.
In Chilson v. Lansing Wagon Works, 128 Mich. 43, 87 N. W. 79, it is said:
“It is for the jury to say whether a servant having no experience in the use of a saw of a peculiar construction, dangerous because pieces of timber were liable to become wedged between the saws and thus throw the operator’s hand upon them, should have been instructed as to this peculiarity.”
It was held in Nelson Mfg. Co. v. Stolzenburg, 59 Ill. App. 634, that: a servant might not see the bluish circle made by the teeth of a rapidly revolving saw, and should have been warned. The danger of saws is further dealt with in Jarvis v. Coes Wrench Co., 177
We find no reversible error in the judgment, and it is therefore affirmed.