Brooks v. De Soto Oil Co.

Smith, J., delivered the opinion of the court. That this unguarded set screw constituted a menace to the life and limb of any person engaged in the work being-done by appellant at the time of his injury is hardly open to question, and that this danger could have been easily removed by guarding or sinking the set screw is also-equally obvious. This -being true, unless there existed circumstances not appearing in this record which relieved appellee from the duty of guarding or sinking this, set screw, it follows, either that appellee was negligent as a matter of law in failing to guard or sink the screw, and thus furnish appellant with a safe place in which to-work, or it was for the jury to say whether it was negligent in failing to do so. In either event, the demurrer should have been overruled. Matthews Co. v. Bouchard, 28 Can. S. C. 580; Mountain Copper Co. v. Pierce, 136 Fed. 150, 69 C. C. A. 148; Pruke v. South Park Foundry & Machine Co., 68 Minn. 305, 71 N. W. 276; Geno v. Fall Mountain Paper Co., 68 Vt. 571, 35 Atl. 475; Homestake Mineral Co. v. Fullerton, 69 Fed. 923, 16 C. C. A. 545; Rabe v. Consolidated Ice Co. (C. C.) 91 Fed. 457. We are aware that there is a line of decisions dealing with the question of unguarded set screws announcing a contrary rule; but we decline to follow them, and fully agree with Mr. Thompson in his criticism of them contained in sections 4021, 4022, and 4023 of volume 4 of the second edition of his work on Negligence. There are no facts alleged in the declaration from which it could be said that appellant was guilty of contributory negligence. He was under no duty to examine-the machinery, for he had a right to presume that the master had discharged his duty of furnishing him a safe-place in which to work. Reversed and remanded.