Jensen v. Hudson Sawmill Co.

PiNNey, J. 1. Upon the subject of the negligence of the defendant, the averments of the complaint are quite explicit as to the dangerous character of the conveyor as it was constructed and operated, and show the absence of the care and — 79 — precaution which ordinarily prudent persons are alleged to observe in respect to similar affairs under like circumstances. It is alleged that the conveyor could have been, as is usual in other mills in that part of the country, guarded and protected with little expense, so that the danger of working around and about the same would have been obviated. There are averments showing that this machine, as constructed and operated, was not reasonably safe. The prominent element of danger relied on is the want of proper light in the mill to enable employees to see the chain and various parts of the conveyor while revolving or moving with rapidity. It does not appear that the danger of working in the mill and around the conveyor was imminent, but the inference is quite clear that, if the mill was properly lighted, the plaintiff and other operatives might, in the discharge of their duties, avoid danger of injury. It was the duty of the defendant to use reasonable care and precaution to prevent injury to the plaintiff and other operatives from the causes mentioned in the complaint. As was said by Mr. Justice Newman in Guinard v. Knapp-Stout & Co. Company, 95 Wis. 486: “No doubt, the test of negligence is the presence or absence of that degree of care which ordinarily prudent persons are accustomed to observe about the same or similar affairs in the same or similar circumstances.” As there said: “The employer may carry on his business in such places as he pleases, and with such machinery and appliances as he may choose, provided only he does not violate the positive law of the land, nor expose his employee to unknown danger.” “Ike employee is deemed to accept the place furnished to work, with the risk of such dangers as he knows or can discover by the exercise of ordinary attention.” Failure to properly light the place in a sawmill where the employees are required to work around or in close proximity to strong and dangerous machinery, by which they are liable to suffer sudden and unexpected injury for want of proper light to see the same, is — 80 — relied on as negligence on the part of the employer. If evidence should be given at the trial tending to prove the acts or omissions relied on as negligent, the case would have to go to the jury, that they might draw the proper inferences or conclusions as to whether negligence on the part of the defendant had been established. We think that the complaint does sufficiently charge the defendant with actionable negligence which was the proximate cause of the plaintiff’s injury. It does not appear that the conduct of the defendant came up to the standard of persons generally in the same business, under the same or like circumstances, but this will be proper matter of proof at the trial. 2. It is contended on the part of the defendant that the allegations of the complaint show that the plaintiff assumed the risk of injury in his employment from the causes alleged in the complaint, and was guilty of contributory negligence tending to produce the injury of which he complains. It will be convenient to consider these questions together, as they are so nearly related. Indeed, assumption of unusual risk is considered a species of contributory negligence. Whittaker’s Smith, Neg. 398; Nadau v. White River Lumber Co. Wis. 131; Hazen v. West Superior Lumber Co. 91 Wis. 213; Darcey v. Farmers’ Lumber Co. 87 Wis. 249; Peterson v. Sherry Lumber Co. 90 Wis. 93. Where a defect or danger is open and obvious to a person of ordinary intelligence and judgment, although it exists in consequence of the negligence or default of the employer, knowledge of it on the part of an employee of mature years will be presumed; and, although the employer may be said to have been guilty of negligence in keeping his premises or machinery in a dangerous condition, the employee is also guilty of negligence in accepting the service and continuing in it; and this becomes equivalent to contributory negligence on his part, and will prevent a recovery. Hazen v. West Superior Lumber Co. 91 Wis. 213. The rule as to the effect — 81 — of the promise alleged to have been, made to the plaintiff, ■and which is said to have induced him to remain in the defendant’s employment, seems to be that where there is an objection by an employee against continuing in the employment of the master because of some special risk attending it, and a promise by the master to remove the danger within a reasonable time, a continuation of such employment in , consideration of such promise will relieve the employee of the charge of contributory negligence if injured because of such danger within such time, unless the risk is so obvious •and immediate that serious injury may probably result from a continuance of the wrork. “ If the services cannot be continued without constant and immediate danger, and the danger and its character are fully known to the employee, he assumes the risk of the employment. . . . If the danger is not great and constant, then such promise may well be deemed to relieve him; but if it is great and immediate, and of such a nature that a prudent man would not ordinarily incur it, such a promise does not nullify or excuse the contributory negligence.” Erdman v. Illinois Steel Co. 95 Wis. 14, and cases cited. It is alleged in the complaint that'the plaintiff was a common laborer and inexperienced and unfamiliar with sawmill ■machinery and the dangers incident thereto and connected therewith; and it is charged that the defendant improperly placed him at work in close proximity to the machinery mentioned in the complaint, without informing him of the dangers thereof by reason of the unguarded condition of the chain ■and sprockets of the conveyor; that he concluded that his employment under such circumstances was dangerous, and that he would quit unless the defendant would furnish better light and properly cover and protect said chain and sprockets, and he so informed the defendant May 22, 1893; that the defendant promised to furnish better light, and to guard and protect said chain and sprockets, and, relying thereon, — 82 — be remained in the said employment, and received the injuries of which he complains, as stated, on the 24th of the same month. In Jones v. Florence Mining Co. 66 Wis. 271, it is laid down as “now clearly settled that if a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to ex- • pose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them and do his work safely, with proper care on his part.” McDougall v. Ashland Sulphite-Fibre Co. 97 Wis. 382, and cases cited. As was said in Rummell v. Dilworth, 111 Pa. St. 350: “ In view of the facts alleged, actual experiment only could disclose to the plaintiff the degree of peril he assumed. The machinery was open to the view of the plaintiff, but whether he was liable to be drawn into the machinery depended upon matters with which he was totally unacquainted, and which he could learn only by actual experiment. The plaintiff cannot be supposed or assumed to have accepted in advance a peril which he could not estimate, and the extent of which, for lack of experience, he could not have known. Where there is any doubt whether the employee was acquainted, or ought to have been made acquainted, with the risk, the determination of the question is necessarily for the jury.” If the master has promised to repair a defect within a reasonable time, the fact - that the servant subsequently remained in his employment, in the well-grounded belief that the dangers would be obviated, does not necessarily, as a matter of law, make him guilty of contributory negligence. It is a question for the jury whether, in relying upon such promise, and continuing in the employment after he knew — 83 — of its insufficient condition, he tvas in the exercise of due care. The burden of proof in such a case is upon the company to show contributory negligence. Hough v. Railway Co. 100 U. S. 215. It is a question of fact for the jury to determine whether the defect is so serious or the dangers so great that a prudent person would not continue in the performance of the required' work. Chicago D. F. & F. Co. v. Van Dam, 149 Ill. 337. For the reasons stated, we do not think that the allegations of the complaint show, as a matter of law, either that the plaintiff was guilty of contributory negligence, or that, he assumed the risk of being injured in his employment in the manner stated in the complaint. The proof that will necessarily be admissible in support of the allegations of the complaint will be of the particular facts and circumstances, of the case, from which it will be the duty of the jury to draw proper inferences as to these questions, so that ultimately the truth of the matter alleged in the complaint will be for the consideration and determination of the jury; and it is impossible to properly pronounce against the plaintiff, as a matter of law, in advance of the trial. It follows from these views that the order of the circuit court sustaining the demurrer is erroneous and must be reversed. By the Ooivrt.— The order of the circuit court is reversed,, and the cause remanded for further proceedings.