Journeaux v. E. H. Stafford Co.

Grant, C. J. {after stating the facts). Plaintiff was a very intelligent boy; had been employed in this room in similar work for four months; fully comprehended the situation, the danger, and the necessity of keeping away from the saw; had a space of 4 feet within which to carry boards 15 inches wide; had been duly cautioned of the dangers and care required of him about his work; had worked before at this particular machine; and had nearly completed this day’s work with safety. There is no room for claiming, nor is it claimed, that he was inexperienced, unintelligent, or so young as not to appreciate the situation. There was no unknown or latent danger into which he was sent. The accident was not one which a prudent man would probably anticipate or provide against. Plaintiff’s fall was either the result of his own want of care, or else was purely accidental. There was no danger from the side of the machine. No injury could come to the plaintiff unless he got his arm on the table of the machine, 3 feet from the floor, and on the saw, 8 inches from the side. Such an event was not probable. The court instructed the jury as follows: “ Now, it is claimed on the part of the defendant here [400] that when this young man went in there, and looked .the surroundings over, and saw the saw and the table, and the surroundings, and the work that was to be done, and all that sort of thing, that from his own testimony, and from his ability and experience, he knew the dangerous character of the saw, — in fact, that he took in the situation, and that he knew all of the danger and all of the surroundings in connection with this machinery and the work that he had to do; that he appreciated it fully. Now, if you find that that is true, gentlemen, why, of course, he cannot recover here, because he had a perfect right, if he desired to do so, to go there and work with a saw that had not any hood on,— one that was dangerous,— if he understood the entire surroundings. If he did that," as I say, he cannot recover.” The plaintiff’s own testimony showed that he saw the situation, had been instructed in his work, and had been warned of and appreciated the danger. He therefore assumed the risk. The case is clearly within the following decisions: Sjogren v. Hall, 53 Mich. 274; Lindstrand v. Lumber Co., 65 Mich. 254; Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133;. McGinnis v. Bridge Co., 49 Mich. 466; Richards v. Rough, 53 Mich. 212; Schroeder v. Car Co., 56 Mich. 132; Borck v. Nut Works, 111 Mich. 129; Prentiss v. Manufacturing Co., 63 Mich. 478. The facts were undisputed, and the court should have directed a verdict for the defendant. The danger was open and apparent to all. Defendant had provided sufficient room around the machine wherein plaintiff could work with safety. Manufacturers are under no legal duty to provide guards or screens to machines of this character, where they have left sufficient room to carry on the work around them, and have duly instructed their employés in such work, and warned them of the dangers attending it. To hold otherwise would be to require all machines, the contact with which would be dangerous, to be provided with guards or screens, and to require the use of every possible safeguard against áccident. The authorities do not so hold. There is always more or less danger [401] in operating and working around machines like that in use by the defendant. It is a part of the employe’s contract that he assumes that danger. Sullivan v. Manufacturing Co., 113 Mass. 396. It is urged that plaintiff introduced testimony to show the common use of screens or hoods over machines of this character for the purpose of protection to those working in the position of plaintiff., One witness was produced to show such custom. He testified that he had seen those devices on machines in factories in Mishawaka and Elk-hart, Ind., where he had worked, and that he had also been in a great many other factories. He then testified: “It is the custom in factories of this kind to protect saws of this character, as a general rule, by splitters; and, if they have no guard over the top of the saw (that is, a patent guard), they have an iron bent over on which they hang a lever to arrest the dust from flying in the man’s eyes that is in front of the saw.” From this testimony it would appear that the object of the screens and hoods is to protect the person standing in front of and operating the saw. After asking the witness if, in his opinion, plaintiff would have been injured if the machine.had been thus protected, and eliciting the answer, “If there had been anything there, any protection at all, it would have been impossible for him to get onto the saw,” his attorney put the leading question: “Is that the main object for which these devices are used, or.one of the objects?” Witness answered, “Yes.” On cross-examination the witness testified as follows: “ Q. I understand you to say that it is customary to use a screen or hood, or some device, on machines of this character, — equalizing machines? “A. I said it was customary to use it on all rip-saws. “ Q. Is it customary to use a screen, hood, or other protection to the saw on an equalizing machine? “A. It can be used on equalizing machines. “Q. Will you kindly answer my question ? “A. I have seen it used on equalizing machines. “ Q. Will you please answer my question ? [402] “A. Yes, sir. “ Q. You say it is customary ? “A. Yes, sir. “ Q. Why hesitate about answering it? “Mr. Lovelace: Because you would not let him explain it. “ Q. I didn’t ask for any explanation. Maybe he can tell why he hesitates, as well as counsel. “A. I would like to explain these things. I like to explain them just as they are. “ Q. I .understand you to say it is customary to use these screens, hoods, or other devices on equalizing machines ? “A. I have seen them used on equalizing machines in different factories. “ Q. Do you understand my question ? “A. Yes, sir; I do. “ Q. Do I understand you to say now that it is customary to use them on equalizing machines ? “A. When they are used as a rip-saw, it is. ‘ ‘ Q. And you have seen them on equalizing machines in Michigan ? “A. No, sir; I never saw them in Michigan.” The testimony fails to sustain the claim that these devices are in common use on machines like this one, or that they are designed to protect those who are employed in carrying material to and taking it away from the machine, and who have ample room provided for the work without coming in contact with the saw. The machine was used for a variety of work. Defendant gave evidence tending to show that some of this work, such as grooving, could not be done on the machine if provided with the device, and that its presence would interfere with the operator, and materially affect the efficiency of the machine, on the kind of work then being done. Plaintiff makes no case for the application of the rule that railroad companies and manufacturers are required to adopt those inventions for the protection of their employés which are in ordinary use, and the failure to adopt which is negligence. Judgment reversed, and new trial ordered. The other Justices concurred.