Westman v. Wind River Lumber Co., 91 P. 478

91 P. 478 | Or. | 1907

Opinion by

Mr. Chief Justice Bean.

1. The first assignment of error is based on the admission of testimony tending to show that defendant could have guarded or protected the machinery about which plaintiff was working at the time of the accident at slight expense and without interfering with the reasonable and efficient operation of its business, thereby lessening the: danger to him by coming in contact with such machinery. The contention of defendant is that, unless required by law, it is not the duty of'-a master to cover, fence or guard dangerous machinery or dangerous premises, where its servants are required to work, but that its full duty is discharged if it warns the servant of the attending danger, or the risk is so open and' obvious that the servant must take notice thereof. ■ Several cases, among which are Rock v. Indian Orchard Mills, 142 Mass. 522 (8 N. E. 401), and Gilbert v. Guild, 144 Mass. 601 (12 N. E. 368), are cited'in support of this contention; but, if • they are authority for the broad’doctrine that it is not the duty of -the master' in any case to fence or guard dangerous machinery, we must decline to -follow them. It is a part of the implied contract between master and servant that the master will furnish the servant with a reasonably safe place in which’ to perform his work and reasonably' safe tools, appliances and machinery to work with, and a failure in this regard is negligence. If by due care and reasonable expense dangerous machinery can be covered or fenced, without interference with the conduct of the business, so as to lessen the risk to employees, it is the duty of the master to do so: Thompson, Negligence, §4017 et seq., where the'question is fully discussed and authorities cited.

2. While such is the primary duty of the master, a servant majr, however, dispense with its performance. .If he agrees and consents to work at a place which will expose, him to danger, knowing and fully comprehending such danger and the risk he incurs thereby, he cannot complain, if he is injured, that the place might have been made safer by the fencing’ or guarding of the machinery. But this is on the theory that he knowingly and voluntarily assumed the increased risk, and not because it was not the duty of the master to protect the machinery in the first instance. If, as said by Mr. Justice Lord, in Roth v. North Pac. Lum. Co. 18 Or. 211 (22 Pac. 844), “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 the 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.” There- was no error in admitting the testimony complained of.

3. It is also' claimed that the court erred in admitting the testimony of Jonas Westerman, in rebuttal, that the conveyor belt, which ran from the main shaft to a pulley near the ceiling, was old and frayed at the edges. This belt was found, after the accident, wound around the main shaft where the plaintiff was injured. It seems to have been the theory of defendant that plaintiff was not in the performance of his duties at the time of his injury, but was in some way handling or playing with the conveyor belt, which a short time before had been removed from the pulley by the foreman of the mill and was not then in use, and that it had become entangled in the main shaft while he was holding it, thereby causing his injury. It was to combat this theory that plaintiff was permitted to show that the belt was of’ such a character that it was likely to get caught and wound around the shaft without human aid.

4. Defendant requested the court to charge the jury that it was not bound to warn plaintiff of the danger'of coming in contact with the belts or machinery about which he was required to work. The complaint alleged, and the evidence tended to show, that plaintiff was not only a minor, between 15 and 16 j-ears of age, but inexperienced in the work at which he was employed. It was defendant’s duty, therefore, to point out or give him notice of the danger incident to his employment and the risks attending the same (4 Thompson, Negligence, § 4091; 20 Am. & Eng. Enc. Law, 2 ed., 97), unless they were so open and apparent that one of his age, experience and capacity, in the exercise of ordinary care and prudence, should know and appreciate them to the same extent as an adult, and that was a question for the jury: Avery v. Meek (Ky.), 45 S. W. 355.

5. And, finally, it is contended that the court erred in overruling defendant’s motion for a nonsuit and in refusing to direct a verdict on the theory that the dangers attending plaintiff’s employment were open and obvious, and he was bound as a matter of law to know and appreciate them. But, as we have said, plaintiff was not only a minor, but an inexperienced workman, and therefore it was a question for the jury whether the dangers were open and obvious to a person of his age and experience: Bowers v. Star Logging Co. 41 Or. 301 (68 Pac. 516); Dubiver v. City Ry. Co. 44 Or. 227 (74 Pac. 915, 75 Pac. 693); McDonald v. O’Reilly, 45 Or. 589 (78 Pac. 753); Mundhenke v. Oregon City Mfg. Co. 47 Or. 127 (81 Pac. 977: 1 L. R. A. (N. S.) 278); Foley v. California Horseshoe Co. 115 Cal. 184 (47 Pac. 42: 56 Am. St. Rep. 87); Jenson v. Will & F. Co. 150 Cal. 398 (89 Pac. 113).

Finding no error in the record, judgment is affirmed.

Aeffirmed.