Swoboda v. Ward

Marston, J.

This was an action brought to recover damages for injuries received while working in the saw mül of defendant.

*422 The evidence on the part of the plaintiff went to show that he had been working in and about the mill some fourteen days; that he was placed near the gang and had to carry slabs from the gang and place them on rollers; that when injured he had taken hold of a heavy slab, too heavy for one man to carry, and was pulling it, walking backwards; that while so engaged he accidentally stepped on a piece of wet bark and slipped back against the cog-wheels near the slab run; that his pants were caught and his leg drawn into the cog-wheels and severely and permanently injured; that he had not been warned or cautioned about these cog-wheels, and had never noticed them until after he was hurt, but that he could have seen the cogs if he had stopped work to look for them. Evidence was also given to show that these cogs should have been covered in order to be safe; that such wheels are generally covered in mills in order to prevent persons getting injured, and that it is dangerous to run them without being covered. Evidence was also given of plaintiff’s lack of experience and knowledge in such mills, and of the nature and extent of the injury received. No evidence was introduced on the part of the defendant.

The court instructed the jury that these cogs being open, uncovered and dangerous, and plaintiff, with a knowledge of such facts, having continued at work, he was thereby guilty of such contributory negligence as would prevent his right to recover, and instructed the jury to return a verdict in favor of the defendant.

It is very evident that the increased dangers to which persons are exposed in the use of machinery at the present day, have kept even pace with the progress made in the manufacture of new, improved and complicated varieties thereof, and the employer therefore who, in carrying on his business, uses such machinery, must take those precautionary measures which are usual and customary with careful, prudent men to protect his em *423 ployees from all unnecessary dangers arising from the use thereof.

He is to use that degree of care which every prudent man is expected to employ and does employ under similar circumstances in carrying on the same kind of business. Cooley on Torts, 556-7, and cases cited; M. C. R. R. Co. v. Dolan, 32 Mich., 513 .

The employer must also provide a suitable place in which the servant, exercising due care, can perform his duty without exposure to dangers that do not ordinarily come within the obvious scope of such employment as usually carried on. Coombs v. New Bedford, Cordage Co., 102 Mass., 572 : 3 Amer., 506.

A party entering upon a particular employment assumes the risks and perils usual thereto. Where the machinery used is not defective, either in its construction or from want of proper repair, and where the usual and customary means are adopted to guard against accidents, if wanting in either respect there is an increased risk, and if the servant is injured in consequence thereof, the master must be held responsible therefor.

If, however, the servant, with full knowledge of the .facts, and understanding the increased risk occasioned ! thereby, in the absence of any promise by the master to [remedy the same, consents to and remains in the master's employ, then he voluntarily incurs such increased [risk, and if he suffers damages in consequence of an Jinjury received thereby, he will be without remedy. The ■fact that he remains in the master’s employ under such ! circumstances and with such knowledge, is what constitutes contributory negligence on his part.

The master in permitting his machinery to be thus more than ordinarily dangerous is guilty of negligence; the servant with full knowledge thereof, by remaining contributes thereto. Cooley on Torts, 551-2, and cases cited.

A person when employed and instructed to commence work at a particular place, as for instance in this case in a mill, is under no obligation, in order to protect him *424 self from the charge of contributory negligence, to first go all through the building, and make himself familial* ■with each piece of machinery, and the danger he may incur in case he comes in contact with it in its then condition. It is sufficient for him that in entering upon the active discharge of the duties assigned him, he ascertains what he is expected to do, and the dangers directly connected therewith, and he has a right to assume that in the performance of that particular duty, reasonable facilities therefor will be afforded him, without coming in contact with other unforeseen or unsuspected dangers.

Where the servant shows that the injury he received was in consequence of an increased risk, — one not ordimarily incident to the employment, — growing out of the master’s negligence, the burthen of proof is upon the master to show that the servant knew of and understood the increased dangers. Cooley on Torts, 661 et seq.

Where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon the credibility of witnesses, or inferences from facts and circumstances about which .honest, intelligent .and impartial men might differ, such a case should be .submitted to the jury. Conely v. McDonald, ante, 150; Dublin etc. R. R. Co. v. Slatterly, 39 L. T. Rep. [N. S.], 265.

Applying these rules to this case and it is clear the court erred in withdrawing it from the consideration of the jury.

The plaintiff at the time of the injury was properly engaged in the active discharge of his duty. He testified that he had not been warned about these cogs, and had not noticed them until after he was hurt. Contributory negligence pre-supposes the doing of some act which ought not to be done, or the omission to do something which should be done. In other words, a want of due care. 5 Am. Law Reg. (N. S.), 405 , n. . If he did not know of the exposed and dangerous condition of these cogs, then by remaining at work he was not doing some *425 thing which he ought not to have done, and the effort he was making, at the time of the accident, to remove the slab, showed no want of due care on his part, but on the contrary, was commendable. Even had he known of the cogs and their unguarded condition, it would not thereby conclusively follow that he could not recover. Other facts and circumstances would have to be considered in connection therewith: his age, his intelligence, his experience and such like, so that the jury might ascertain and determine whether he fully understood and appreciated the danger. Reed v. Northfield, 13 Pick., 94 ; Whittaker v. West Boylston, 97 Mass., 273 ; also Coombs v. The New Bedford Cordage Co., supra, which in many respects resembled the present case.

I am of opinion that the judgment should be reversed with costs and a new trial ordered.

The other Justices concurred.