Neifert v. Metler

Brooke, J. (after stating the facts). The employé assumes the risk of the obvious dangers incident to his employment. Richards v. Rough, 53 Mich. 212 (18 N. W. 785); Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336); Ldmotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550); Price v. Baking Co., 130 Mich. 500 (90 N. W. 286); Hathaway v. Milling Co., 139 Mich. 708 (103 N. W. 164); Walters v. Cement Co., 148 Mich. 315 (112 N. W. 113). In Lamotte v. Boyce, supra, Mr. Justice Hooker, speaking for the court, said: “ There is no obligation upon the part of employers to make their premises and machinery perfectly safe, or to have the most approved appliances. The duty of the employer to provide reasonably safe machinery is qualified by his right to contract for the use of machinery which falls short of the best and most approved; and when the defect is obvious, and cannot escape ordinarily careful observation, which is always due from the employé, the risks at [358] tendant upon such use are assumed by the latter. In places like sawmills, appliances more or less crude may reasonably be expected, and those who use them are ordinarily as good judges of their safety as the master. If unsafe, and the employé still consents to use them, the risk is then his; and the master has the right to expect that he assumes it, where the nature of the appliance, and its dangers, are obvious ” — citing cases. To meet the question of assumed risk, plaintiff was permitted at the trial to amend his declaration setting out the provisions of 2 Comp. Laws, § 5349, and averring a breach thereof by defendant. This amendment was allowed over the objection of defendant, and more than five years after the date of the injury to plaintiff. In our view of the case, it is unnecessary to determine whether the right to amend was properly granted. Nor is it necessary to determine whether the provisions of the statute apply to a situation such as is disclosed by. this record, where the belt, when in position upon both pulleys, is so loose that it does not move the machinery until the tightening pulley is applied. Our reason for arriving at the foregoing conclusions is that we are constrained to agree with the learned circuit judge in holding that plaintiff was guilty of contributory negligence as a matter of law. Here we have a man of mature years and extensive experience in the use of machinery, more or less dangerous, and seven months’ experience in defendant’s mill. He is, as is evidenced by his testimony, moreover, a man of rather unusual intelligence. He was entirely familiar with the device he was operating at the time of his injury. He had observed the peculiar and alleged dangerous character of the small pulley, and had himself on several occasions previously performed the same act which finally caused his injury. The device was one of extreme simplicity, and the danger of allowing his hand to be caught between the loose belt and the pulley, thus tightening the belt and causing it to draw him over the shaft, was, we think, so obvious that it cannot be said that defendant was negligent in not warn [359] ing one of his age and experience. Upon this point the following cases may be examined: Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); Perlick v. Wooden-Ware Co., 119 Mich. 331 (78 N. W. 127); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907); Cantwell v. John Brennan & Co., 125 Mich. 349 (84 N. W. 299); Schulte v. Pfaudler Co., 150 Mich. 427 (113 N. W. 1120); Wight v. Railroad Co., 161 Mich. 216 (126 N. W. 414). The judgment is affirmed. 'Ostrander, C. J., and McAlvay, Blair, and Stone, JJ., concurred.