4 Or. 52 | Or. | 1870
By the Court,
At the trial of this case, the Court below was asked by appellant’s counsel to instruct the jury “that if they be
In refusing this instruction, we think the Court below erred. The respondent having been injured while engaged in the 'performance of certain work in the woolen mill of appellant, which required him to pass constantly around and about the machinery thereof, it was his duty to exercise ordinary care and watchfulness in doing so.
The degree of care necessary to be exercised by an employee in working with or around such machinery, should be proportional to the danger usually and necessarily incident to the particular work being performed.
There is very little machinery in a woolen mill but what is dangerous to careless and thoughtless operatives; consequently, we hold that it was the duty of respondent while engaged in working in the vicinity of such machinery to exercise his thinking faculties, and- give careful attention to the business in which he was engaged. If he failed to do so, and was injured in consequence thereof, it was such negligence as contributed to his own injury and would prevent his recovery in this action. This proposition is sustained by the following authorities: The Pittsburg & Connellsville Railroad Co. v. McClurg, decided Jan. 7, 1868, in Supreme Court of Penna., reported in Am. Law Reg., Mar. 1868, p. 277; North Penn. R. R. Co. v. Hulman, 13 Wright, 60; Railroad v. Evans, 3 P. F. Smith, 255. The last Was a case of injury because the plaintiff did not “think or look,” and was unconscious of danger. The Court says, “On approaching the road it was his duty to look and listen for an approaching locomotive, and if he saw or heard one coming, to get himself out of the reach of it. * * “If he might have heard or seen the train approaching, or if he saw it and mistook the track it was on, it was negligence in him not to exercise his senses correctly and place himself out of danger.” (See, also, Rush v. City of Davenport, 6 Iowa,
The Court below was also asked by counsel for appellant to instruct the jury that “if they were satisfied from the evidence the machine in question was in the same condition at the time of the accident that it was in at the time plaintiff commenced work for appellant, and that the danger was open and readily discoverable by an ordinarily careful person, the jury may take that fact as evidence that the risk assumed by respondent was such as was incident to the employment in which he was engaged. This instruction the Court refused to give as asked, but modified the same by adding the following: “But if the machinery was of itself improper, or improperly placed by the defendant’s neglect, and that impropriety or neglect caused the injury, the plaintiff will not be presumed to have contracted to work with and take the risk of improper machinery.”
¥e think this instruction' should have been given as asked, because the evidence reported in this case tends to show that the “machine in question was in the same condition at the time respondent commenced work for appellant that it was in at the time of the accident; and also, that respondent knew the position and character of the machine, or at least had the means of such knowledge. It was in open, plain view, and respondent had been working in its immediate vicinity for two days prior to the happening of the accident. It also appears that the attention of respondent had been called to this machine prior to the accident, by one of the operatives.
The general rule, which is well established by all the cases on this subject, is “that an employer who provides the machinery, and oversees and controls its operations, must see thatoit is suitable; and that if an injury to the workmen happen by reason of a defect wnlmown to the latter, and which the employer by the use of ordinary care could have cured, such employer is liable for the injury.” Hence, under this rule it will be seen that it does not necessarily follow, that the employer is liable to his employee for every injury which he may sustain by reason of defective
The case in California is very similar to the one under consideration. The plaintiff had been engaged in working in the vicinity of a dangerous piece of machinery called a “ cupola,” in repairing it, and after he had been so engaged for two days, it fell down and injured him. The Court held that he could not recover of the owners for the injury sustained, on account of his knowledge of the condition of the machinery at the time. The Court says that “when a party works with or in the vicinity of a piece of machinery insufficient for which it is employed, or for any reason unsafe, with a knowledge or means of knowledge of its condition, he takes the risk incident to the employment in which he is engaged, and cannot maintain an action for injuries sustained arising out of accidents resulting from the defective condition of the machinery.” (McGutrick v. Mason, 4 Ohio St. R. 569; Hayden v. Smithville Manufacturing Co., 29 Conn. 558; Williams v. Clough, 3 Hurl. & Norris, 258; Griffiths v. Gidlow, Id. 648; Dynen v. Leach, 40 E. L. and E. 492; Skipp v. Eastern Co. Railway Company, 9 Ex. 223; Story on Agency, sixth edition, § 453, and notes and cases cited.)
The Court below, in refusing the instruction last referred to, refused to submit to the jury the question of fact, whether the respondent had knowledge or the means of knowledge of the dangerous condition of the machine in question at the time of the accident. If this machine was
The refusal of these instructions may have prevented a verdict in favor of appellant in the Court below. Therefore, the judgment is reversed and the case remanded to the' Court below for a new trial.
