Klotz v. Power & Mining Machinery Co.

SiebecKER, J.

In the absence of the statutory provision — sec. 163Qjjj Stats. (Supp. 1906; Laws of 1905, ch. 303), — under the common-law principle it is clear that plaintiff would be held to have assumed the risk arising from the absence of a proper guard for the gearing in which he was caught and injured. But this section of the statutes •enacts that “if it appear that the injury was caused by the *109 negligent omission of bis employer to guard or protect bis machinery . . .” where said employee was injured, as required by law, then continuance in such employment by such employee, “with knowledge of such omission, shall not operate as a defense.” Counsel for the respective parties are agreed that this statute abrogates the previously existing rule which barred recovery in cases wherein the injured person had assumed the risk. This change iu, the law does not, however, affect the employer’s right to the defense of other phases of contributory negligence. The effect of such legislation in this respect was considered in Buckner v. R. & D. R. Co. 72 Miss. 873 , 18 South. 449 , and the court states the effect thereof in these terms:

“The effect of this is not to destroy the defense of contributory negligence by a railroad company, but merely to abrogate the previously existing rule that knowledge by any employee of the defective or unsafe condition of the machinery, ways, or appliances shall not of itself bar a recovery. . . . They, like others not employees, must not be guilty of contributory negligence, if they would secure a right of action for injuries.”

Other cases sustaining the position are Norfolk & W. R. Co. v. Cheatwood’s Adm’x, 103 Va. 356 , 49 S. E. 489 ; Narramore v. C., C., C. & St. L. R. Co. 96 Fed. 298 ; Schulte v. Pfaudler Co. 150 Mich. 427 , 113 N. W. 1120 .

TJnder the issues raised the court submitted to the jury by proper instructions the inquiry whether the gearing in question was so located as to be dangerous to plaintiff and other employees in the discharge of their duty, whether the defendant ought to have anticipated that some injury would probably result to employees therefrom, and whether plaintiff was guilty of negligence which contributed to produce the accident. The jury by their general verdict found the defendant liable, thus necessarily determining that the gearing in its unprotected condition was dangerous to employees in the discharge of their duties; that the injuries were such as defendant ought reasonably to have anticipated; and that *110 plaintiff was free from negligence contributing to cause the injury. The case presented by the evidence amply sustains the finding that the exposed gearing was a menace and danger to employees and that the injury was one within the field of reasonable anticipation.

Appellant specially assails the verdict as to the finding that plaintiff was free from contributory negligence and avers that the evidence shows that the plaintiff was guilty of negligence per se in placing his arm in such close proximity to the gearing in reaching for the stick as to cause his sleeve to be caught in the teeth of the gearing. We cannot hold that this act and the manner of performing it show a want of ordinary care respecting his personal safety. Though this danger was obvious and readily appreciated, yet it cannot be said that persons undertaking to perform such a service in close proximity to such a machine are shown guilty of contributory negligence if in the operation their garments come in contact therewith. Under such circumstances the inquiry is one of fact as to whether the operator in the light of such conditions used “care reasonably commensurate with the risk to avoid injurious consequences” (Narramore v. C., C., C. & St. L. R. Co., supra), and is to be resolved by the jury upon the evidence. The instant case presents a state of facts which is not so clear in its inferences that the question of negligence can be determined as a matter of law.

“It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Richmond & D. R. Co. v. Powers, 149 U. S. 43 , 13 Sup. Ct. 748.

We are of opinion that the court properly submitted this question to the jury.

By the Court. — Judgment