The plaintiff brings his action on the case for injuries received while in the employ of defendants, using machinery which he alleges was unsafe. The defendants are partners, and for many years have been largely engaged in carrying on the business of manufacturing wagons at Buchanan, in this State. They are not mechanics. Their business in the shops, at the time the accident complained of occurred, was under the general management of M. S. Mead, against whose competency for the position nothing appears in this record. Tie had the general superintendence of the entire business at the works, and George McNeil had the oversight and immediate charge of the blacksmith shops in which the injury to plaintiff occurred, and nothing is alleged against his competency and fitness for his position. Various machines for sundry and divers purposes, all connected, with the plaintiff’s business, however, were run and operated in this shop, and quite a large number of men were employed therein for that purpose. The motive power used for propelling the machinery was steam, and there is no complaint but that this was properly managed. For fourteen months before the accident occurred the plaintiff, who was then twenty-three years of age, had been working in the blacksmith shop for the defendants, cutting iron and punching holes in iron plates with the punching-machine, known as the Long & Alstater power press, and by which he claims to have been injured. The machine had been in use in the shop as long as the
In describing the accident, the plaintiff says: “ I always sat right in front of the machine. I only have a recollection I was punching these plates, and placed one on the gauge out here, (describing the model before him,) sitting in front of the machine, and swung it in, and heard the crash; * * * that is all I know about it. I cannot describe the crash even. * * * I know I did not become unconscious. * * * I don’t know whether I went over or not. I think I threw my head back. I don’t hardly think it threw me from my feet.” One piece of steel went into his eye, another into his cheek, and another into his forehead. The plaintiff further testified that he had no thought of danger at all, in connection with punching the piece of iron, when the injury occurred. Plaintiff further stated he could use the machine and punch as well as Mr. Mcbl eil could; that he understood how to use the machine, and noticed nothing wrong in the way the die was set; noticed the working of the punch; saw nothing wrong with it; never knew there was any defect about the machine or its working ; never had any accident with the machine before ; never saw any indication of an accident; and that the die was always held firm, so far as he could discover.
None of the witnesses testify that the machinery used was more dangerous or unsafe than others of that kind, and the only ground upon which the plaintiff seeks to recover is that the defendants were negligent in using Long & Alstater’s setscrew method in fastening and holding the die; that to use it was negligence. The cause was tried by jury, and under the rulings and charge of the circuit court the plaintiff obtained a verdict for $4383.33. Defendants appeal.
It is unnecessary, under the previous rulings of this Court, to discuss this case at length, or to examine separately each
It may be said the verdict has settled the first question in favor of plaintiff, and this is true if it was based upon testimony properly admitted under a charge properly given by the circuit judge. We shall ..not, however, enter upon an examination of the record upon this point in our discussion of the case, but leave it as the jury has found it.
Upon the second point, it is not claimed that the machinery was not good, sound, and well made; neither does it appear from the record that the plaintiff ever made any'objection to its use, or notified defendants that it was in any respect improper or dangerous for the purposes for which it was used, or anything of the kind. He was in the employ of a company, none of whose members were accustomed to machinery. If the machinery or any of the appendages were dangerous, or one position was more dangerous than another, the plaintiff’s means of knowing that fact were far greater than defendants’. He gave no notice of anything of the kind; in fact, it seems never to have occurred to him that there was any danger.
It is difficult to see how the defendants can be held responsible to a skilled employee for an injury received while using machinery with which he was particularly acquainted, and which neither he nor any other person ever regarded as unsafe. The testimony does not show or tend to show that the machinery, from the use of which the in jury occurred, was defective, either in construction or for want of repair; neither does it appear that anything could have been done to the machine by the defendants to guard against danger or accidents more than was done. All machinery is dangerous to a greater or less extent, and particularly when operated by steam. The defendants had to select the kind of machinery they
There is no question in this case but that the in jured party had as much knowledge of the machine and appliances used, and of all the circumstances relating to the machinery and its safety, as did the defendants or their foreman. There is no showing in this case that defendants or their foreman did not use ordinary care and prudence in protecting the plaintiff against dangers not within his knowledge or observation, and the accident of which he complains, and this is all they were required to do. The risks and dangers, whatever they were, so far as the record shows, were voluntarily assumed by the plaintiff, and no question is made but that lie-was fully capable of understanding and appreciating them, and in such case the risk was his, whatever it might be.
No employer, by an implied contract, undertakes that his machinery and appliances are safe beyond a contingency, or even that they are as safe as those of others using the same kind of machinery, “or that accidents shall not result to
Under the.third point, had the defendants negligently furnished an unsafe machine to the plaintiff to use, under the circumstances of this case he could hardly have failed to have discovered the fact; and if he chose to continue the service after such knowledge, he assumed the consequences of the increased hazard, and he would have no cause against the defendants for injury resulting from such increased hazard.
From what has been said it will be discovered that the plaintiff’s whole theory of liability in this case (which seems to have been adopted by the court) is erroneous, and it therefore becomes unnecessary to consider the various assignments of error based upon the charge.
The judgment must be reversed and a new trial granted.