Scharenbroich v. St. Cloud Fiber-Ware Co., No. 8812

No. 8812 | Minn. | Nov 16, 1894

Lead Opinion

Mitchell, J.

This action was brought to recover for personal injuries alleged to have been caused by defendant’s negligently leaving-unguarded and uncovered a pinion in its pulp mill, in which plaintiff was employed.

The power to operate the machinery was furnished by a water wheel under a small annex to the mill. This wheel was connected with the machinery by a horizontal shaft running under the floor of the annex. Upon the end of the shaft was a' pinion connecting with a cog wheel immediately under the floor. This pinion was placed in a hole cut in the floor, so that it was partly above and partly below the floor. The hole in the floor was somewhat larger than the pinion, thus leaving an open space of two or three inches at the side of the pinion. When the machinery was in motion the pinion revolved quite rapidly. That part of the pinion which extended above the floor was open and unguarded. At one side of this pinion, and a few inches distant from it, there came up through the floor, from the water wheel below, a vertical shaft, with a horizontal handle or lever attached to the upper end of it. This was for the purpose of turning the water off and on the water wheel, which was done by turning the lever. The usual and natural place for a person to stand, when turning the lever, was between it and the wall of the room, thus leaving the upright shaft between him and the pinion. It took considerable force to turn the lever, and the higher the water the more force was required. During high water, when the water was first turned on, it would strike the cogs of the wheel, and spray up through the hole in the floor, rendering it wet,- and consequently somewhat slippery. There were no cleats on the floor, against which to brace the feet while turning the lever.

The plaintiff, a young man, aged about twenty two years, and presumably of ordinary intelligence, was employed as a laborer in the mill, and among his regular duties was that of turning the water off and on, which had to be done quite a number of times every day. He was not a skilled mechanic, but he had worked in this mill during two previous seasons, and the evidence is conclusive that he was fully aware of all the facts above stated, and had full knowledge of the exact nature and condition of the alleged dangerous machinery. On the occasion when he was injured, he had been sent to turn off the water, for the purpose of permitting a belt to be put on the “barker.” This having been done, he then proceeded to turn on the water again. He had turned it partly on, when the water, being more than usually high, sprayed up in considerable quantities on the floor where he was standing. For this reason, and also because it required his full strength to turn the lever, and the space where he stood, between the upright shaft and the wall, was rather narrow, he shifted his position, and moved around nearly opposite the end of the pinion; and while there, in the act of turning the lever, his foot slipped, came in contact with the revolving pinion, and was drawn down between the pinion and the floor, and thereby sustained the injuries complained of.

Had the case turned exclusively upon the question whether the defendant was negligent in leaving this pinion unguarded, the case would undoubtedly have been one for the jury.

The question here, however, is whether, upon the facts, the plaintiff must be deemed to have voluntarily assumed all the risks incident to the use of the machinery in the condition in which it was, or whether that also was a question for the jury. It is thoroughly established in the law that a servant does, not necessarily assume the risks incident to the use of unsafe machinery because he knows its character and condition. He must also have understood, or by the exercise of ordinary observation ought to have understood, the risks to which he is exposed by its use. In this case it is undisputed that the plaintiff knew the exact nature of the situation. He knew that the floor was wet; that this made the floor slippery; that there was nothing, except the smooth floor, against which to brace his feet when turning the lever; that if his foot slipped there was nothing to prevent it from coming in contact with, and being caught by, the revolving pinion; and that if it did it would be injured. It required no special skill to understand these things, as they were patent to the sense, upon the most ordinary observation. Indeed, he admits that he was aware of all this. His only excuse is that he did not think of his foot slipping. But in view of the situation — the floor being wet, and he in the act of applying special force to turn the lever — he must or ought, in the exercise of ordinary intelligence, to have understood that there was increased liability of his foot slipping, as this was a matter of ordinary experience, and in accordance with the most simple and familiar laws of nature.'

It is impossible to conceive of anything which any one could have told him, about either the situation or the risks incident to it, which was not perfectly patent to the senses, in the exercise of common observation by an adult of ordinary intelligence.

The doctrine of the voluntary assumption of risks by a servant is, for manifest reasons, not especially favored by the courts, and ought to be very cautiously applied.

But the doctrine is firmly established in the law, and, if it is to be applied in any case, we think it must be held applicable to the facts of this case.

Order reversed.

Gilfíllan, C. J'., absent on account of sickness; took no part.

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Dissenting Opinion

Canty, J.

(dissenting). I cannot concur in the foregoing opinion, so far as it holds that it conclusively appears that plaintiff fully knew and appreciated, or, in the exercise of ordinary care, should have known and appreciated, the risks incident to the work in which he was injured. All of the conditions were obvious to a person of ordinary intelligence, except the condition of the floor, and the soles of his shoes when he was bracing himself in the act of turning the lever. There might, and ordinarily would be, sand, dirt, or grit on the floor, and also on the soles of his shoes. This would cause his feet to stick to the floor when pulling on the lever, whether the floor was wet or dry. The constant throwing of water on the floor during this spell of high water would naturally tend to wash off this sand, dirt, and grit, make the floor soft and slippery, and the soles of his shoes might happen to be more clean and free from grit than at other times. These are changes in the condition of things which he might not know or appreciate. It does not appear by the evidence that he ever operated this lever before when the water was high, or when it had been thrown on the floor by the action of the wheel, or that he had ever slipped before when operating it. He was not a skilled mechanic, and should not be expected to exercise all the skill and forethought of one, or of a person of sufficient skill, experience, and capacity to build, have charge of, or operate the mill. While the defense of the assumption of the risk by the servant is well established in the law, it should not be favored. It too often puts the courts in the position of holding that, the more dangerous the master’s premises or appliances, the less risks he runs. If they are so dangerous that any one ought to know the dangerous character, the master runs no risk, incurs no liability, at all. The greater his moral duty, the less his legal duty. The burden is on the defendant to establish the defense of assumption of risk. Unless it appears by the evidence on plaintiff’s side of the case that he both knew and appreciated the risk, the burden is on defendant to prove that he did. It seems to me that it does not so conclusively appear in this case as to make it a question for the court. It is a question for the jury, and the order appealed from should be affirmed.

(Opinion published 60 N. W. 1093.)

Petition for reargument denied Dec. 4, 1894.