Sabere v. Benjamin Atha & Co.

The opinion of the court was delivered by Garrison, J. The judgment of nonsuit directed at the trial is affirmed upon the ground then given by the trial court. The fact that some kinds of steel are more frangible than other kinds does not place the present case -outside the pale of the doctrine of obvious risk. The extent of the danger incurred by striking steel against steel may vary with circumstances, but the essence of the risk remains the same, viz., that stated by the Court of Errors and Appeals in the case of Tompkins v. Machine Company, 41 Vroom 330, where it is said: “That the result of striking a steel tool with a hammer of steel would cause chips to fly, seems essentially an obvious danger.” In view of this concrete characterization of the occurrence by which the plaintiff was injured, his claim that his employer ought to have assumed that he was ignorant of the danger thus naturally attendant upon his work cannot be supported. The mere fact that an employe has not been informed that one of the probable results of striking steel against steel might be the forcible disintegration of the metal and the flying asunder of its particles does not render the employer responsible for an injury so received by the servant. This was in principle held in the case of Murphy v. Rockwell Engineering Co., 41 Vroom 374. The rule deducible from the opinion of Justice Dixon in this case is that in the absence of notice to the contrary a master has a right to assume that the experience of his servant and his knowledge of the natural forces involved in the service he is about to undertake are adequate to his protection from the ordinary results of [310] the operation of such forces. The ground for the rule thus declared rests upon the necessity of some presumptive understanding between master and servant as to the experience of the latter and his knowledge of ordinary facts and forces that are involved in the proposed employment when nothing expressly is said upon the subject. The rule itself proceeds upon the ground that it is entirely reasonable to require the servant, who knows what his experience has been and what his knowledge is, to rely upon the facts thus within his knowledge in deciding for himself whether he can safely engage in a given employment; whereas, it would he wholly impracticable to require the master to catechise every servant as to his past experience and the extent of his knowledge as to common facts in order to decide for the servant whether the latter’s experience aiid knowledge afforded him adequate protection against the ordinary incidents of the proposed employment; and these considerations were deemed sufficient to cast upon the servant the responsibility either of reaching a decision for himself upon his own estimate of his knowledge or experience or else of imparting to his proposed employer such facts as would negative the assumption of such responsibility. The practical rule therefore is that when nothing to the contrary is said by the servant or known to the master, the latter may assume the existence of such facts within the servant’s knowledge as would be implied by his undertaking a given employment. If the servant has not the experience and knowledge involved in this presumption it is his duty in some way to impart these facts to the master. “This duty,” as held by the opinion cited, “rests upon him not only when he enters into employment, hut also at every stage of his service, requiring him to refuse to act in matters beyond the range of his experience or else to take the risk of the dangers naturally incident to his act. The employer cannot be held responsible for such dangers in the absence of notice that the experience of the workman was less than his contract implied.” This obviously must be so unless it could be assumed that a servant had a better opportunity to estimate his fitness for a given employment before he entered upon it than he had after, as in the [311] present case, many years of actual engagement in and about tlie work of tlie employer, which would be manifestly absurd. Hollowing the rule laid down by Justice Dixon in the case "cited, in the reasoning of which we fully concur, the nonsuit directed in the present case will be aflirmed.