Snowberg v. Nelson-Spencer Paper Co.

Gilfillan, C. J. The allegations of this complaint are not so precise and definite as might be desired as to some of the facts, but the pleading will suffice as against a demurrer. There can be no doubt that the defects in the machinery which rendered it dangerous for plaintiff to work with it, and also the danger he was in by reason of such defects, were .known to plaintiff, so that he would be taken to have assumed the risk, were it not for the alleged promise of the defendant to remedy the defects, and its request to plaintiff to continue using the machinery until it should remedy them, bringing the case within the recognized exception to. the general rule that a servant who uses defective machinery, knowing of the defects and the consequent dangers, does so at his own risk. Of course, one who is within .the exception may be so negligent in the use of the machinery [534] that any injury to himself will be chargeable in a greater or less degree to his own negligence, in which case he cannot recover. The manner of the injury to plaintiff, as stated in the complaint, is suggestive of this. It alleges, however, that it was necessary for him to do as he did, and in the face of that allegation it cannot be said that contributory negligence appears so that the case ought to be withheld from a jury. Order affirmed.