Relyea v. Tomahawk Pulp & Paper Co.

Dodge, J. The plaintiff is a little vague as to the specific failure on defendant’s part which is claimed to constitute a breach of its duty to furnish a reasonably safe place for plaintiff to work. He seems to assert defect in original construction of the apparatus in using a board pivoted by a bolt at one end, and resting loosely at the other on a smooth iron plate, because the defendant should have foreseen that by continual use the pivot would become loose, the board would become uneven, and the iron surface, on which the loose end rested, would, by dripping of oil, become slippery, so that that end of the board might slip off. He seems also to suggest that defendant was negligent because some or all of these troubles had ensued and not been repaired. The trial court held that no defect in original construction was assigned by the complaint, and that the mere lack of repair was necessarily as obvious and well known to plaintiff as to the master or any of its employees, and he must be held to have either assumed the risk thereof or been as much guilty of negligence in using the device as the master was [311] in permitting it to remain for use. The general principles of law governing, this class of cases are now so trite as hardly to justify their restatement. The general rule that the master must furnish a reasonably safe place and reasonably safe appliances is subject to the modification that, but for positive prohibition by law, the master may construct and equip his factory as he sees fit, without liability to an employee who, with knowledge or adequate means of knowledge, chooses to take the risks thereof. Osborne v. Lehigh Valley C. Co. 97 Wis. 27; Mielke v. C. & N. W. R. Co. 103 Wis. 1. In the light of this rule it matters little whether the arrangement in question was vicious in original design and construction, because likely to become loose and insecure as a necessary result of its ordinary use, or because the unsecured end was naturally likely to slip out from under one using it, or whether it had become dangerous by getting out of repair in these respects. There can be no doubt that any such peril from original construction or any defect which had developed in the course of its use was as patent to plaintiff as to the defendant. He, a man with five years’ mechanical experience, did not need to be informed of the likelihood of the wearing of a pine plank continually swinging around an iron bolt as a pivot, nor of the probability that a plank might slip where it rested loosely on a smooth and greasy iron surface, if by leaning over he subjected it to lateral pressure. These perils were plain before his eyes. He must be deemed to have accepted them and assumed the risk. If, on the other hand, those perils had developed in the natural course of the use of the appliances by himself and his companions, failure to observe them would be quite as inconsistent with ■ due care on his part as on the part of any representative of the employer, for the very use he made of them, namely, the opening and closing of the board and stepping thereon in the course of his work, was obviously the surest means of discovering such defects as are [312] now claimed to have existed. He must, equally, be held to have known and assumed the risks of such disrepair by continuing in the employ without protest. The action of the trial court in directing verdict for the defendant was therefore justified on the ground that plaintiff had assumed the risks of the defects from which he claimed to have suffered, and we need not consider whether the testimony as to existence of such defects was credible in view of the physical facts, nor whether plaintiff was conclusively shown guilty of contributory negligence in the performance of his work, both of which questions are discussed. We find nothing material to our conclusion in the rejection of certain evidence. The result must have been the same had it been admitted and considered. By the Court.— Judgment affirmed. BardeeN, J., took no part.