107 Minn. 488 | Minn. | 1909
Lead Opinion
Appellant had his hand
The evidence clearly shows that the saw was in an exposed position, and any one working around it might easily come in contact with it, and it was fairly established that it was practicable to more completely guard the saw by extending the covering in front of it from four to six inches further toward the floor, still leaving an exposed space of eight or ten inches for the purpose of cleaning out under the saw. The evidence is sufficient to sustain the allegation that respondents did not take adequate measures to keep the chute free, and'to prevent the sawdust and edgings from piling up under the saw. At least two others, who had operated the saw, testified that they had found it
The only serious question in the case is whether appellant assumed the risk in attempting to clean out the chute, or was guilty of contributory negligence in attempting to do it in that manner. On the question of assumption of risk, if it be true that appellant was put to work upon the machine without any instructions, then it was an open question whether he did not have a right to assume that it was a part of his duty to remove the material when it clogged up to such an extent as to prevent the operation of the saw. Appellant claims to have acted upon that theory, and assumed that it was a part of his work to remove the accumulated material when it became necessary. If it be true that, after he had been working for some time, the foreman appeared and told him to remove such of the spalts as he conveniently could, and to shove the rest, with the sawdust, down through the hole, then that work was specifically made a part of his duty in operating the machine. He was not a' meddler, and he only assumed the risk in so far as he appreciated the danger. Appellant was a young man of very limited experience in and about sawmills, and with less than a day’s experience upon this particular saw. While any reasonable person might know that his hand might be cut if it came in contact with a revolving saw, yet an experienced person might not appreciate the danger of getting his hand in contact with the saw while engaged in doing the work in that manner. An older and more experienced person might exercise the judgment to select a long stick and keep his hands at a proper distance; whereas, an inexperienced person of immature judgment might consider it safe to attempt to do it with a short stick, and so inadvertently permit his hand to come in contact with the saw.
On the question of contributory negligence the same reasoning applies. It is not to be presumed that he voluntarily put his hand in a dangerous position, and whether or not he exercised due care depended upon his experience, the instructions he received, and the natural desire
The appeal being from an order granting a motion for judgment notwithstanding the verdict, it is ordered that the order be reversed, and the verdict be reinstated.
Dissenting Opinion
(dissenting).
I think the plaintiff was guilty of contributory negligence, and that the trial court properly ordered judgment for the defendant. I therefore dissent.