Dougherty v. West Superior Iron & Steel Co.

Pinnby, J. 1. The defendant insisted by ifs answer that the plaintiff’s injury was caused by negligence on his part contributing to the result, and as the question of negligence on the part of either party to such actions as the present is often, as in this case, largely one of inference from the facts in evidence, the court should, we think, have submitted to the jury the question whether the plaintiff was guilty of negligence on his part contributing to the injury of which ho complains. That the jury were not instructed on this point, and that there was no finding upon it, seems to have been the result of inadvertence; but the absence of such a finding is an error, in the state of the record before us, that is fatal to the judgment and renders its reversal necessary. 2. The case was fully argued on the merits, and as it is probable that the evidence on another trial will not be materially different from that now presented, it is manifestly proper to consider the question whether the case should have been submitted to the jury at all. It is perfectly obvious, as found by the jury, “that the accident was the result of the usual and ordinary risks of the employment he was engaged in,” and equally so that in the exercise of common sense and ordinary prudence he must have known and appreciated the risk of the employment, and therefore must be held to have assumed such risk upon entering upon the work in which he was engaged when injured. He waa [349] at the time twenty-eight years of age, and we must assume that he was a person of ordinary intelligence; and it appears that he was familiar with the manner in which the work was performed, haring observed it for a considerable time in a like manufacturing plant in New Jersey, where he says the work was performed as in the defendant’s plant, lie had, besides, worked at making cores for sixteen months or more for defendant where the spindles were turned by hand, and had observed somewhat the way in which they were made when turned by steam. He does not claim' that he was ignorant on this subject. It is simply preposterous and incredible that, with his knowledge and experience, he did not know that his hand was liable to be caught and drawn in by the hay he was feeding while the spindle was revolving. The facts open to the most casual inspection were sufficient, to admonish a person of ordinary intelligence of such danger. It may be that he meant to convey the idea that his hand was unexpectedly caught in the hay and drawn in, whereby it was injured, but that fact of itself would afford no ground of liability on the part of the defendant. It is not claimed that the so-called machine was defective in any respect, or ivas imperfectly constructed. On the contrary, it ivas a, very simple device, and there was nothing complicated, obscure, or concealed in respect to its use or operation. "Whatever of risk or danger there was in the work he was ordered to do at the time was open and plain to the most ordinary comprehension, and ho was a man of mature years, with the knowledge and experience stated. There was no reason on the part of the defendant to suppose that he needed either admonition or instruction as to the danger or the method of doing his work, and there was no claim in the evidence, or made at the argument, that any particular or special instruction was either necessary or usual. We are clear that there is no evidence [350] whatever justifying any imputation of negligence to the-defendant in this respect, or for setting him at work on a spindle driven by steam power, the velocity of which it appears was not very materially greater than when turned by hand, and in respect to which he had had an extended practical experience. If any risk or danger there was in the employment, it was plain and open to observation upon the most casual inspection. lie cannot, therefore, now be-heard to say that he was not aware of, and did not appreciate, the danger. It certainly was not necessary to tell him that, if he allowed his hand to be caught in the haj^ just where it was being wound around the spindle, there was danger that it would be seriously injured. Common' sense would suggest that from the condition of affairs open to his observation. Crowley v. Pacific Mills, 148 Mass. 228; Linch v. Sagamore Mfg. Co. 143 Mass. 206; Russell v. Tillotson, 140 Mass. 201; Kean v. Detroit C. & B. R. Mills, 66 Mich. 277. We must hold, therefore, upon the facts of the case and the well-settled rule of law applicable to< them, that the injury the plaintiff 'received was from one of the ordinary risks of the work he was engaged in, and-that upon entering upon the work by direction of the foreman and under the circumstances stated, he assumed the risk, and is therefore not entitled, upon the facts shown, to-recover in this action. The cases in this court are too numerous and too plain to justify further discussion. Burnell v. West Side R. Co. 87 Wis. 387; Corcoran v. Milwaukee G. L. Co. 81 Wis. 191; Showalter v. Fairbanks, Morse & Co., post, p. 376; Naylor v. C. & N. W. R. Co. 53 Wis. 661 ; Johnson v. Ashland Water Co. 77 Wis. 51; Paule v. Florence M. Co. 80 Wis. 350; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136; Haley v. Jump River L. Co. 81 Wis. 421; Cole v. C. & N. W. R. Co. 71 Wis. 114. The fact that Burns, the foreman, told the plaintiff, whem he objected to working on the spindles driven by steam,. [351] “ Either go there or get out,” does not obviate the objection to the plaintiff’s right to recover. If an employee of full age and ordinary intelligence, upon being required by his employer to perform duties more dangerous or complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwillingly, from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action therefor against his employer. Leary v. B. & A. R. Co. 139 Mass. 580; Bradshaw’s Adm’r v. L. & N. R. Co. (Ky.) 21 S. W. Rep. 346; Woodley Metropolitan R. Co. L. J. 46 Exch. Div. 521. Whatever danger or peril there was in the work he was ordered to do was, as already observed, plain and obvious. His objection to doing the work was not that it was dangerous, but that he did not understand it, and particularly that he was not strong enough to handle the cores. But, if he saw and understood that the work was of a dangerous character, it, was his duty to decline the employment. Eor these reasons it is plain that the recovery cannot be sustained. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.