Schmitt v. Seefeld

Siebeckeb, J. The plaintiff claims that defendant was-guilty of negligence in failing to guard or cover the saw under the table bed above described, in that the omission made the-saw a dangerous appliance as regards employees in the discharge of their duties in operating the mill. It is urged that, under sec. 1636/, Stats. (1898), it was defendant’s duty to cover the saw so projecting under the table because it was “so-located as to be dangerous to employees in the discharge of their duties.” This section requires that “belting, shafting, gearing,” and various other appliances mentioned therein shall “be guarded or fenced” for the protection of employees engaged in labor near or about them. A saw is not enumerated in this section as one of the parts of a machine or as an appliance to be guarded or fenced. But it is urged that the provisions of sec. 1636//, Stats. (Laws of 1905, ch. 303), enlarge sec. 1636/, Stats. (1898), to-the extent that all appliances so located as to be dangerous to laborers in the discharge of their duties are to be included. IVe do not find the claim justified by the language of the later-section. It provides that, in actions by servants for damages on account of the negligent omission of the employer to guard or protect machinery or appliances “in the manner required' [462] in the foregoing section,” the defense of assumption of risk shall not obtain. The words employed in the later section •clearly indicate that it was intended to refer only to such machinery and appliances as the former section embraces, and the context of the later section cannot, therefore, by any process of interpretation be held to enlarge the provisions of the former section so as to make it cover machinery and appli•ances not originally included in it. It is contended that the evidence is sufficient to show negligence within the common law, in that the jury could have found defendant negligent in not furnishing plaintiff a rea•sonably safe place to work. It is not disputed that contact with the revolving saw under the table would be dangerous to life and limb. The situation presented, however, does not in itself constitute a negligent omission by the defendant to furmish plaintiff a safe place to work. It is important to consider whether plaintiff, in the natural course of his employment while performing his service, would be brought near the running saw under the table. Erom the ■evidential facts it is manifest that his duties did not require that he get under the table to remove sawdust from the floor, nor was this necessary to shake it from the tin spout. Theretofore the operator had always successfully performed this service by using a shovel to remove the sawdust from the floor mear the table. He then removed the accumulation from the "tin spout by jarring it with his foot. Manifestly this could also be done by striking it with a stick. It appears, however, that the plaintiff, after he had removed the sawdust from the floor, crouched down under the table, took hold of the tin ■spout and shook it with his hand to loosen the sawdust and cause it to drop to the floor, and that while in this position his foot slipped, causing his body to fall, pitch forward, and to thrust his arm against the running saw. This manner of cleaning the tin spout was so unusual and obviously unneces•sary that any danger attending the service was so remote from the ordinary, customary, and reasonable way as to relieve the [463] master from guarding against its dangers. The rule is that where a servant in performing a service wholly deviates from the customary and reasonable method of performing it and •adopts a course wholly outside of what is to be reasonably •expected, thereby exposing himself to hazards and dangers not incident to the reasonable and customary way of performing the service, then the master is not liable to him for any injury within his duty of furnishing a safe place to work. If the master furnishes the servant a reasonably safe place to perform the service in the usual and customary way that servants may reasonably be expected to take, then the master has fulfilled his duty. So in this case, as the trial court held, the plaintiff was furnished a reasonably safe place to remove the sawdust from the bolter in a manner reasonably well adapted "to the performance of the service. He saw fit to perform this service in a way which was not to be reasonably anticipated as one which would be adopted by any person under the •circumstances. We are of opinion that the trial court properly directed the dismissal of the complaint for the want of any evidence tending to show that the defendant was guilty •of any negligence which caused plaintiff’s injury. By the Court. — Judgment affirmed.