18 Or. 205 | Or. | 1889
This is an action to recover damages for personal injuries sustained by the plaintiff, while acting in the capacity of a laborer, by being caught in a rapidly revolving shaft and seriously injured. The negligence alleged, in substance, is that the defendant did not provide a safe place for the plaintiff to do his work; that it suffered to be used in its mill an uncovered shaft with projecting screws, over which, in the performance of duties connected with his service, the plaintiff had to step while such shaft was rapidly revolving, in the doing of which he was ignorant of the danger, but that the defendant had notice of the sanie; and thereby exposed him to unusual dangers and risks. The defendant denies the negligence imputed to it by the complaint, and allegés that it provided and furnished the plaintiff a safe place, and suitable instruments at which and with which to work, and that the plaintiff, contrary to instructions, and negligently, wore' a loose gunny-sack for an apron, and carelessly climbed over said revolving shaft at a place where it was neither necessary or proper for him so to do,—that said shaft was several feet away from the place where the services were to be performed, but in plain sight, and its dangers obvious, dud that the duties of the plaintiff did not require him to pass over it, but up the slab chute to clean it out, when obstructed; that while so climbing over said shaft, the said apron became entangled with the shaft, and the plaintiff thereby injured by his own misconduct and neg
There are numerous assignments of error, but those chiefly relied upon in the brief and at the argument are confined to exceptions taken to certain portions of the charge as specified, and certain other instructions asked by the defendant and refused by the court. The bill of exceptions contains the evidence and the charge of the court to the jury, so that the record before us contains every matter essential to a right decision of the errors assigned. While the testimony is conflicting, a brief outline of it becomes necessary to understand the instructions given and those asked, in order to determine the relevancy and soundness of the objections raised. The testimony of and for the plaintiff tended to show, in substance, that he applied to the foreman of the defendant’s- lumber mill for a job, and was directed to go below and go to work at the chute down which the slabs were passed from the floor above. His co-laborer, who spoke -the English tongue but little, by motions and broken English, explained to him, as well as he could, how to do the work at which they were engaged. These duties were to keep the lower end of the slab chute clear, and to distribute them accordingly, *as they were adapted, some to the lath saws and the others to the wagons. At the foot of the chute was a platform, which was the working place of the plaintiff and his co-workers. Occasionally it would happen that the chute would blockade with the slabs, when it would become necessary to get further up the chute and break the blockade. To do this, according to the testimony for the plaintiff, the defendant had provided but one way, and that way required him to leave the place at the foot of the chute some several feet, and step over an uncovered three-inch iron shaft, with set-screws projecting, which was revolving at the rate of four or five hundred revolutions a minute •—the shaft being about seventeen inches above the plank upon which he was standing, over which he had to steD to
The testimony for the plaintiff shows that he is a common laborer and not a skilled mechanic; that his knowledge of machinery and its uses and the perils attending it is limited; that he had been at work at the business some- three months prior to the injury; that the iron shaft referred to was several feet from the platform at which he worked, and not always visible from that point, but that in going to it, and to step over it, the shaft was plainly in sight, and that he did not know there were any set-screws, with their projections, upon it,—-which, it may be added, were necessarily invisible when the shaft was revolving at such a rapid rate; that the morning he went to work at the foot of the chute he put on the apron, that was hanging upon one of the posts, which had been used by a former worker; that he usually wore a gunny-sack for an apron, some three or four inches above his knees; that in doing his work they picked up the slabs, and that as the logs from which they came were taken out of the river they were wet, and covered with slime, rendering it necessary to wear an apron;
It appears, then, upon the issue made and tried, that the contention of the parties may be thus resolved: The plaintiff contends that he was inexperienced, and that the defendant violated its duty in putting him to work at a place which was not safe, and exposed him to more than ordinary dangers and risks, while the defendant insists that he deliberately abandoned the safe way which he provided for the unsafe one he used; but, barring that, he maintains that the revolving shaft was in plain sight, and the danger of crossing it fully exposed and discoverable by the commonest observation and intelligence, and that the accident was the immediate and exclusive result of his own act, in carelessly and inattentively crossing it. It is a rule of law, founded upon the theory of implied contracts between the master and servant, that when the latter enters the service of the former he takes upon himself all the ordinary risks incident to his employment. These risks, it is said, he is supposed to have in mind when he engages in the service, and that his compensation is stipulated accordingly. To justify that assumption, we are bound to presume that he knows and understands, the ordinary risks incident to his employment, and that if. an injury occurs as a result of the ordinary and not extra
But another part of this implied contract is that the master shall furnish suitable tools and appliances for the servant with which to work, and provide a reasonably safe place in which to perform it; yet the servant may dispense with this obligation. "When he consents to work at a place which will expose him to danger, knowing and understanding what such danger is, and the risk he incurs thereby, he cannot complain, in the event of an injury on that account, that the place where he worked might have been made safe by the exercise of reasonable care. “Ilis assent,” said Devens, J., “has dispensed with the per formance on the part of the master to make it so. Having consented to serve in the w.ay and manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected.” Sullivan v. Ind. Manufacturing Co., 113 Mass. 399.
When it is not unlawful, and does not interfere with the rights of others, it is the legal right of every person to carry on a business which is dangerous in itself, or in the manner of conducting it. He may select the machinery to be used, and conduct the business in the manner he deems best, and, as Ellsworth, J., said, “run his mill with old or new machinery, just as he may ride in an old or new carriage, navigate an old or new vessel, occupy an old or new house, as he pleases.” Hayden v. Manufacturing Co., 29 Conn. 558. Within the same principle, so long as the law does not require it, the master is not bound to box or fence his machinery in running his mill and conducting his business, and merely a failure to do so will not render him liable for neglect.
In such case, if the servant is acquainted with the dangers, and fully understands the risks to which he is exposed when the place prepared for him to work is near or about machinery which is not boxed or covered, and consents or chooses to contract to do it, then he assumes such risks, and the master is under no obligation to indem
But, on -the other hand, if the servant is ignorant or inexperienced, and does not know or understand the risks incident to his employment, and to which he would be exposed, and an injury happen to him without any negligence on his part, and without the master warning or pointing out the dangers, he would be guilty of a breach of duty, and liable to the servant for the injury he sustained. The distinction rests upon the knowledge of the servant in one case, and the want of it in the other.
If, therefore, the service required to be performed is dangerous, or rendered so by reason of the master’s failure to provide a place where the servant may do his work with safety, but which, by the exercise of due care and reasonable expense on the part of the master, might have been made safe, his omission would be a breach of duty, and render him liable for any injury arising therefrom, unless title servant has knowledge of, and comprehends the nature or extent of, the risks to which he is exposed, at the place provided, and thereby dispenses with the performance of this duty on the part of the master; or unless the master, when the servant is ignorant .or inexperienced, points out, or gives him full notice of, the risks attending such service at the place' to be performed, and thereby enables him to appreciate such risks, and to avoid them.
It is the duty of the master to furnish suitable machinery and a suitable place for the prosecution of the work required of his servants. In the case at bar, the claim of
Now. turning to the instructions, we are to ascertain wherein the court erred in respect to such portions of the instructions as were excepted to and assigned as error. The trial court, after defining to the jury ■ • negligence, ” and the negligence complained of in respect to the place provided for the plaintiff to work, said: “The master is bound to provide his servants a safe place in which to
The next portion of the charge excepted to is as follows: “If the employment is one involving any peculiar labor, or there is connected with the place where it is to be performed any particular causes of danger, of which the servant is ignorant, by reason of his want of skill in that employment, it is the duty of the master to instruct him upon those subjects, and inform him what it is he needs to be watchful of in the discharge of his duties; and if the master neglects these things he is held chargeable for the injuries that result from that neglect.” In the light of the facts and the law as already stated, it is difficult to
The next exception is to these words, “of the plaintiff, for instance, with such experience as he appears to have had about machinery,” which was the concluding clause of a sentence, the whole of which requires to be stated to render the portion objected to intelligible. “You are to consider,” said the trial court, “the evidence relating to this revolving shaft, with the collar and set-screws, and, in connection with that, you are to consider what the testimony is in reference to such being the ordinary machinery, and whether it was entirely manifest to any looker-on, even if he might be ignorant of machinery, whether the effects it might produce were within the ordinary apprehension, of one looking at it,—if the plaintiff, for instance, with such experience as he appears to have had about machinery.” All that precedes the excepted portion is
The next exception involves several instructions, which may be considered together. These are: “You are to consider the testimony with reference to the feasibility of fencing it in, either by boxing that would entirely cover -it, or by bars or guards across the timber where it was
It may be considered as admitted that the pln.irit.iff did not receive any instructions as to his work, or the danger incident to it, at the place to be performed, but it was claimed that there- was a safe way provided, and that there was no occasion to go the _ way over the shaft, or, if there 'was, the danger was apparent to common observation; while, on the other side, the position was that the way over the shaft was the only way provided, and that, in consequence of its being uncovered, it was unsafe, unless boxed, to an experienced or ignorant man, unless he was advised of the danger and
We are now to consider the refusal of the instructions asked, and these are eight in number, but the two last, the seventh and eighth, we shall dispose of by saying that the seventh required the court, in its instruction, to omit material testimony tending to establish the plaintiff’s version of his case, and contradicting the defendant’s claim that the risk was visible to the commonest intelligence, and the eighth was liable to mislead as asked, and, upon the facts, the law was better stated by the court in the general charge. It is a tedious task, but I shall discharge it, although it extends this opinion, by copying several of the instructions asked,—selecting those regarded as the most itti portan t,—and showing that in substance, and especially as apxfiicable to the facts, they are covered by others given in the charge. The third, fourth and fifth, as asked, were as follows: “If you believe from the evidence that the plaintiff knew the position and character of the revolving shaft by which he was injured, and could have avoided it by going around the end of the shaft instead of stepping over
This must suffice, and it must be apparent that the tria.! court, in its general charge, has presented the law, to say the least, in as pointed a manner as the instructions requested. The rule is well established that it is not error for the court to refuse to give instructions asked upon propositions which have been elsewhere covered in its general charge, or other special instructions' given. Thomp. Trials, § 2852. Upon this matter the supreme court of the United States says: “It has been repeatedly determined by this tribunal that no court is bound to give instructions in the forms and language in which they are asked. If those given sufficiently cover the case, and are correct, the judgment will not be disturbed, whatever those may have been which were refused.” Railway Co. v. McCarthy, 96 U. S. 258. 265. And Mr. Thompson further adds that "it is a principle upon which appellate courts uniformly act that tbe judgment will not be reversed for
To our minds it is apparent that the instructions asked were covered by those given by the court in its general charge; and when this is examined as a whole in the light of evidence as disclosed by the record, it becomes still more apparent that the case was presented to the jury fully, fairly and properly by the court; if any injury has been done the defendant in the result of the trial, it was not caused by any error in the trial court and within our province to correct.
The judgment must be affirmed.