6 Dakota 386 | Supreme Court Of The Territory Of Dakota | 1889
{After stating .thefacts as above.) The defendant in this case was the owner of a flouring-mill situated in Grafton, Dab. The plaintiff was employed by the defendant in this mill in March, 1884, first as oiler of the machinery, in which employ
The evidence does not disclose that there was an"y defect in the manner of the construction of the mill, or in the Materials used, though this was alleged in the complaint; nor is there any proof tending to show that the machinery and the appliances, including the spouting, used in the mill, were not in all respects fit and proper for the purpose for which they were intended and used; nor is there any evidence that the machinery, spouting, and appliances were not properly placed and secured, with due regard to the uses they were intended for and put in running the mill, and the safety of persons engaged in using them. On the contrary, the evidence is undisputed that the mill was constructed of the material and in the manner such buildings are usually constructed; that the machinery and appliances, including the spouting, were of the character and kind generally used in such mills ; that they were placed and secured in their places in the usual manner; and that the mill, its machinery, spouting, and appliances were in all respects fit and proper for the uses for which it was intended, and to which it was put by the defendant. The spouting which gave way was intended and used for the purpose of carrying mill-stuffs from one part of the building to another. It was not made
It was the duty of the defendant to furnish such machinery and appliances as were reasonably safe for the use of the operatives in his mill, considering the purposes for which they were to be used, such as a prudent man would furnish to save himself from injury that would result from unsuitable or unsafe appliances, and to maintain the same in proper state of repair. Loftus v. Ferry Co., 84 N. Y. 455. This duty the defendant performed.
The evidence fails to show any negligence on the part of the defendant, either in the construction of the mill or in supplying safe and suitable machinery and appliances for it, and keeping the same in proper repair. Tie was not bound to anticipate that the spouting running between the different stories of his mill, for the purpose of passing grain and mill-stuffs from one place to another, would be used by one familiar with the purpose for which they were designed and used to bear his weight, or serve in the office of a ladder, floor, or platform. Wonder v. Railroad Co., 32 Md. 411; Buzzell v. Manufacturing Co., 48 Me. 116 ; Burke v. Witherbee, 98 N. Y. 562.
But, if it be assumed that the defendant was negligent in that he did not maintain a stronger spout in lieu of the one that broke and caused the injury, the facts disclosed by the evidencé would, nevertheless, prevent a recovery.
The plaintiff, some time before the occurrence of the accident complained óf — about two months before — had occasion, while in the discharge of his duties, to clear a spout in the vicinity of this one, which had become clogged, by inserting his hand into this particular hand-hole. For this purpose he employed a ladder, and placed it against this identical spout, and climbed upon it,
There is nothing in the case indicating that Brenner occupied any other relation to the plaintiff than that of co-employee. They were engaged in precisely the same business, by the same employer, in the same kind of service, for the accomplishment of a common object, and neither had any control or authority over the other. Wolcott v. Studebaker, 34 Fed. Rep. 8; Lewis v. Seifert, 11 Atl. Rep. 514. No other point made requires examination. Eor the reasons stated, the judgment appealed from must be reversed and a new trial ordered.