102 Wis. 264 | Wis. | 1899
The only reason suggested by appellant why the court should have submitted this case to the jury, which seems seriously urged on the appeal, or worthy of consideration on the record, is that defendant was guilty of a breach of duty to plaintiff is not furnishing two additional live rollers in the roller bench, and while plaintiff was
It follows necessarily that, unless there be evidence in the record from which a jury would have been warranted in saying that the want of two additional live rollers was the producing' cause of the blockade, no other question need be considered, for that would fully justify the action of the trial court in taking the cause from the jury.
The evidence appears to show beyond reasonable controversy that a short slab,— too short to be carried over the rollers,— dropped down and lay in such a position that a timber ran upon it and stopped just after leaving the live rollers, and that other timbers and slabs came down and lodged on the first, so that the bench was completely blockaded thereby. Such being the facts, clearly the failure t'o have two additional live rollers had nothing whatever to do with the difficulty which caused plaintiff to place himself in the position of danger. It would have occurred just'the same, though perhaps a little further down the table, if there had been two more live rollers. Plaintiff testified that the blockade was caused by a short slab being placed on the rollers, and that the head timber was pretty well down to the slab saw. He did not pretend to say where the short slab came from, but suggested that it might have been
Some suggestion is made that the accident may be attributed to actionable negligence in respect to the character of the hook that was furnished plaintiff; that if it had been some longer, or the hook end had been curved instead of straight, and not been so blunt, the accident would not have occurred. The answer to that is that the hook was one of those simple contrivances, so easy of comprehension, as to all the dangers of its use, by any person of ordinary intelligence, even if it were defective in the respects suggested, that actionable negligence of the employer cannot be based on the fact of its being furnished to the employee for use in the performance of his work. In such circumstances, it is presumed that reasonable attention by the employee to those matters which are open, obvious, and easily comprehended by any ordinary person of mature years, will disclose to the employee all the dangers of using the defective contrivance, and he is therefore conclusively presumed to have assumed such dangers as a part of his contract of employment. Borden v. Daisy R. M. Co. 98 Wis. 407; Holt v. C., M. & St. P. R. Co. 94 Wis. 596.
It follows from what has been said that the verdict was properly directed in defendant’s favor, and that the judgment entered thereon should be affirmed.
By the Gowrt. — Judgment affirmed.