Selhaver v. Dover Lumber Co.

169 P. 1169 | Idaho | 1918

RICE, J.

This is an action to recover damages for personal injury sustained by the respondent while operating a rip-saw in the mill of appellant. The complaint alleges that the respondent had not had any experience with said saw, or any saw similar thereto, but that notwithstanding said fact the appellant negligently directed him to work in and about said saw without giving him any instructions relative to the proper way in which to feed the same or to protect himself from injury. The complaint also alleges negligence in the appellant, in that the feed-rollers and saw were old, defective and out of repair, and that the saw was not shielded or guarded, and that because of the inexperience of the respondent and the old worn-ont and unguarded condition of the said rollers and saw, the left hand o£ respondent came in contact with the saw, whereby three fingers of his hand were cut off.

The answer denied the material allegations of the complaint, and alleged that the respondent voluntarily assumed the risk of injury, in the manner in which the same was sustained by him, and also that the injuries received by him were the result of his own negligence proximately contributing thereto.

The evidence shows that the respondent was injured on or about September 10, 1914; that he was twenty years of age at the time of the accident; that he had been working in appellant’s mill four or five months prior thereto; that he had operated the rip-saw off and on during that time, and had operated it continuously for ten or twelve days prior to the accident; that the lumber he was sawing was known as “cull” lumber; that the same was uneven and did not feed regularly through the feed-rollers, but would at times stop, at which times it was customary for the respondent to place his hand upon the board and force it toward the saw until the feed-rollers again engaged the lumber and automatically fed the same; that at the time of the accident respondent was ripping a board 2x10 — 12 ft. long, into pieces 2xé and 2x6.

The rip-saw was equipped with two feed-rollers, the one behind the saw being a corrugated roller and the one in front of the saw being what was called a spiked feed-roller. The two feed-rollers were so connected that both moved at the same time and at the same rate of speed and so that the two would stop together.

Respondent testified that the saw was not in good working order; that for some days prior to the accident it had been warped, or buckled, to some extent; that the feed-rollers were defective, and that he had known them to be defective ever since he started to work on the saw; that when the lumber would stop feeding the saw would continue to revolve and that the friction of the saw against the lumber would cause it to heat, bend and warp. Respondent is the only witness who testified as to the manner in which the accident occurred. His testimony is as follows:

“I ran the plank up to the saw there, about three feet stuck back from the saw, and I put this hand on it like that and shoved it and when I went to shove it it came along there —jerked and drove the plank up on the guide here and throwed my hand — throwed my hand over onto the spike feed there and that took my hand onto the saw.”

In answer to a question propounded by his counsel the respondent stated that the board jumped two feet and that his hand was caught a few seconds after the board jumped. Respondent also testified that he had quit school at the age of seventeen; that he had passed through the eighth grade and was fairly bright in his classes.

Actions of this nature are predicated upon negligence upon the part of the employer, and failure to prove such negligence defeats the action. In the case of Wiesner v. Bonners Ferry Lumber Co., 29 Ida. 526, 160 Pac. 647, L. R. A. 1917C, 328, the court, quoting with approval from the case of Armour Co. v. Russell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A., N. S., 602, stated the duty resting upon the employer in the following language: “The limit of his duty is to exercise ordinary care, having regard to. the hazards of the service, to provide the servant with reasonably safe working places, machinery, tools and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair.”

In this case there was evidence of a defective condition of the machinery to go to the jury under the foregoing rule. Taking respondent’s version of the matter, the question of his inexperience becomes unimportant, for the injury in this case was not due to his unskilfulness or his lack of knowledge. (Arizona Lumber & Timber Co. v. Mooney, 4 Ariz. 366, 42 Pac. 952.)

Notwithstanding the defective character of the machinery,. an employee assumes the risk of his employment where it is shown that he knew of the defective character of the appliances with which he was working, or that the defects were so patent and obvious that with reasonable attention he should have known of their existence, and where he comprehended the danger incident to the defective condition of the machinery, or as a reasonably prudent person should have comprehended the danger and the risk. (2 Bailey on Personal Injuries, 6th ed., secs. 373-376.)

We must take the version of the respondent in this case or we are reduced to mere conjecture. According to his own testimony he had full knowledge of all the defects that were shown to exist.

According to his testimony the injury was caused by the jumping of the plank upon the guide, or the jumping of the board forward for a distance of about two feet, or by the combination of the two circumstances. It was shown that if the feed-rollers were properly adjusted, it would be impossible for the board to jump upon the guide. The respondent testified that he knew how to adjust the feed-rollers; that he had a wrench for that purpose, and that he adjusted them as often as they needed adjustment. He thus assumed the duty of keeping them properly adjusted. He also testified that the back roller had been loose and out of adjustment for two or three days prior to the accident, and also that he knew before the injury occurred that the front or spiked roller was loose. Under such circumstances, in so far as the injury was due to the jumping of the board upon the guide, it was the result of his own negligence in not keeping the feed-rollers properly adjusted.

As to the circumstance of the board jumping forward a matter of two feet, it was shown that the saw was circular, fourteen inches in diameter and somewhat worn; that it extended above the table between three and four inches, and that the motion of that portion of the saw above the table was toward the operator. It is evident that the entire force applied by the revolving saw tended to push the board back toward the operator. "When the feed-rollers engaged the board, it would move forward with the speed of the roller and at no greater speed. If the board jumped forward about two feet, as testified to by the respondent, it must have been due to the force applied by the respondent himself. Respondent knew that the revolving saw was dangerous and that his hand would be cut if it came in contact therewith. He also knew that the spiked feed-roller would draw his hand into the saw in case he permitted his hand to become engaged by the roller. To apply force enough to a board to cause it to jump forward against a revolving saw, in view of the obvious danger of such action, would be contributory negligence on the part of any person of ordinary intelligence.

Respondent testified, however, that he had been told by the foreman that when the board stopped and the saw, because of the motion, became heated and caused the lumber to smoke, not to leave the board in that position but to push it on through, and that he was obeying the instruction given by the foreman. He further testified, however, that on some former occasions when he could not push the board through, he had stopped the machine. As to the amount of force which he applied before he determined that the board could not be pushed through, we may form some estimate by reason of the fact that on this occasion he applied force enough to cause the board to jump forward a matter of two feet. Under this theory of the case, having undertaken an employment attended with such obvious danger, any reasonably intelligent person must be held to have assumed the risk of the employment. (Bradley v. Chicago etc. Ry. Co., 138 Mo. 293, 39 S. W. 763; Beckman v. Anheuser Busch Brewing Assn., 98 Mo. App. 555, 72 S. W. 710.)

“The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employee that the employee shall assume the risk of all danger obviously incident to his employment. (See Bauer v. American Car & Foundry Co., 132 Mich. 537, 94 N. W. 9.) The employee assumes the risk of all dangers obviously incident to his employment, whether the employer is negligent or free from negligence in exposing him to those dangers. If the employer is not negligent in exposing the employee to those dangers, he is not liable for any injury resulting, for two reasons: (a) He himself is free from negligence; and (b) the employee has assumed the risk. When, however, the injury to the employee results from an assumed risk to which an ordinarily prudent employer would not have exposed him, there can be no recovery; not because the employer was not negligent, for he was negligent, but because the employee assumed the risk.” (Bradburn v. Wabash. R. Co., 134 Mich. 575, 96 N. W. 929 )

Respondent claims that the saw was not guarded.

“It is obviously the duty of an employer, under the principles of this chapter, to cover, fence or guard dangerous machinery or dangerous places in the premises where his employees are required to work or to be, provided this can be done consistently with a reasonably proper and effectual operation of such machinery, or with the proper and effectual conduct of his business.” (4 Thompson on Negligence, see. 4017.)

An employee will not be held to have assumed the extra-hazard of working with unguarded machinery which should have been guarded, under the foregoing rule, unless he knew that ordinary prudence required the guarding of such machinery and was cognizant of the extrahazard incident to its operation without the guard — provided his injury was caused by the absence of a guard.

In this case the respondent denied that there was a guard over the saw and front feed-roller, but his witnesses testified that there was a guard over the same, and he himself testified that the guard was adjustable and raised and lowered with the feed. It was shown that this guard was not one furnished by a standard manufacturer of sawmill machinery, but was a “home-made affair ” It was not shown wherein the guard was defective or differed materially in principle from other guards used for the same purpose. Respondent having admitted he knew before the injury that the front feed-roller was loose, the guard, being attached to the roller, did not rest upon the board in front of the feed or as near the board as it would have done if the front feed had been properly adjusted. As we have noted before, the failure, to propexiy adjust the front feed, and. the guard which was adjusted with the feed, was contributory negligence oix the part of the respondent.

The judgment and order denying appellant’s motion for a new trial are reversed. Costs awarded to appellant.

Budge, C. J., and Morgan, J., concur.