Yunkes v. Racine-Sattley Co.

Si-bbecKee, J. It :s ai’gued that the court erred in denying plaintiff’s motion to amend his complaint, because it prevented him from showing the negligence which caused him the injury of which he complains. This contention is not sustained by the record. The amendments set forth statements of facts which were embraced in the original cause of action as alleged in the complaint. The amendments show that the facts alleged therein were conditions involved in the use of the defective pattern and shared in the result caused by the use of the defective pattern. The trial court seems to have so viewed the situation and to have received all of the material evidence covered by the allegations of the proposed amendments. The facts and circumstances adduced show that plaintiff’s injury was the natural and probable result of the us© of the defective pattern. If he had used a proper [85] pattern Ms fingers could not Rave come in contact with the revolving knives as they did, though it and the cleat had been drawn toward .them as the evidence tends to show they were. Under these circumstances plaintiff was not prejudiced by the court’s refusal to amend the complaint. All the essential facts of the alleged cause of action upon which plaintiff relies to show defendant’s, liability were before the court. Upon the case so presented by plaintiff’s evidence the trial court held that the defect complained of in the pattern and the danger incident to its use were so open and obvious that plaintiff must be held to have assumed them while engaged as operator in shaping cleats at the machine in question. Erom the facts of the case as given in the foregoing statement it is manifest that any person of ordinary intelligence could not well avoid observing the danger of his fingers coming in contact with the revolving knives while engaged in shaping cleats as plaintiff was.- The likelihood of injury, while shaping cleats, from the use of the defective pattern, the relation of the revolving knives to the pattern and cleat, and the hazard and danger incident to the use of the defective pattern and cleat in the performance of his task were all open and plainly visible. Plaintiff is a man of intelligence and experience 'and was familiar with the work he was performing. Ordinary attention to his surroundings and the implements he used would have informed him of the defects in the pattern and the cleats and of the dangers incident to operating with them at the machine in question. He had every opportunity to inform himself of all these defects, dangers, and risks. Any omission so to do must he attributed to- his own want of care, and places him in the same situation as if ho had observed all of these conditions. Under sncb circumstances he assumed the risks of injury which were incident to the business in which he was engaged. The fact that a defective pattern was furnished him does not relieve plaintiff from the consequences of its use which were incident thereto and which plaintiff assumed, since the risk was oh86 vious to Mm under the facts and circumstances disclosed, Naylor v. C. & N. W. R. Co. 53 Wis. 661, 11 N. W. 24; Behm v. Armour, 58 Wis. 1, 15 N. W. 806; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049. • The conclusion of the trial court that the evidence shows that plaintiff’s injury was due to the risk he assumed in shaping the cleats is correct, and the judgment of nonsuit was properly awarded. By the Court. — Judgment affirmed.