Dodge v. Kaufman

ViNJE, J. A considerable portion of the briefs of both parties is devoted to a discussion of defendants’ negligence in [174] failing to fumisb plaintiff a safe place in which to wort, and of plaintiff’s contributory negligence. In the view of the case taken by the court these questions become immaterial. It may be added, in passing, that were the question of plaintiff’s contributory negligence material it would be for the jury. We shall assume, however, that a safe place was not furnished and that plaintiff was free from contributory negligence, and dispose of the case on the question of the assumption of risk. That assumption of risk and absence of contributory negligence may co-exist is expressly decided in Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633, and in Van Dinter v. Worden-Allen Co. 153 Wis. -, 138 N. W. 1016. So we will turn our attention to the real crux of the case as disclosed by the evidence and consider whether or not plaintiff assumed the risk resulting from the location of the dump-box. It is elementary that where the dangers of a servant’s working place are open and obvious to and appreciated by him, he assumes the risk thereof by continuing in the employment without objection. Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171. Plaintiff was a man of mature years, an experienced teamster accustomed all his life to the handling and driving of horses, and was thoroughly familiar with the location of the dump-box, the conveyor, and the shaft. He knew that he had to duck his head slightly when sitting on the seat while driving under the dump-box or else it would strike his head. The danger of so coming in contact with it was quite obvious and apparent to any one. Indeed, his counsel freely concedes that plaintiff assumed the risk of being hit by the dump-box while sitting on the dump-cart and driving underneath it in the ordinary course of his employment. But it is argued that he did not assume the risk of being dashed against the dump-box by the frightening and shying of his team; that he did not know and could not reasonably anticipate that his horses would shy at the conveyor, and that, in [175] attempting to control them 'and while momentarily looking back to see that the cart cleared, his head would strike the dump-box. Perhaps it can be said that plaintiff could not reasonably anticipate this particular combination of circumstances that caused his injury. He did know, however, that he must duck his head while driving under the dump-box. He also knew his team was likely to shy at the conveyor when he drove in at the time he was injured, for they shied at it half an hour previously. He intentionally went to empty other boxes between the time he drove in from the east, when the horses became frightened, and the time he drove in from the west and was injured, presumably for the purpose of giving them time to quiet down. And he says he drove in from the west so that the off horse would be further from the conveyor and less likely to become frightened. So it is evident from his own testimony that he had in mind the likelihood of his horses shying and shaped his conduct with reference thereto. How, then, can it be said that he did not assume the risk of their doing just what he anticipated they might do and what he sought to guard against ? He also knew, as an experienced teamster, that if they did shy or plunge they might at least momentarily engross his attention to the exclusion of looking out for his own safety. All this he must have known and appreciated. He therefore knew and appreciated each separate element that went to make up the risk. He may not have known or anticipated the particular combination these separate elements of risk would take in producing the injury inflicted. But that is not essential. It is not necessary that the precise injury should be anticipated, or that it should be foreseen that an injury may happen in a particular manner. It is sufficient if an ordinarily careful and prudent person ought, under the circumstances, to have foreseen that an injury might probably result from the risk in question. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568; Coel v. Green Bay T. Co. 147 Wis. 229, 133 N. W. 23. The case [176] of Hocking v. Windsor S. Co. 125 Wis. 575, 104 N. W. 705, is cited as supporting a different rule. It is there said: “The general rule is that the servant assumes the usual and ordinary risks of his employment; but before he can be held to have assumed an unusual or extraordinary risk he must know, or have reasonable means of knowing, the precise danger to which he is exposed and which- he thus assumes, and a mere vague surmise of the possibility of danger is not sufficient to warrant the court in taking the case from the jury.” This is a correct statement of the law. But by the words “precise danger” is not meant the precise manner in which the injury is inflicted. Those words refer to the particular hazard, risk, or danger from which an injuiy may result in a variety of different ways, as distinguished from the general hazards of an employment. In the case at bar the precise danger was caused by the location of the dump-box, conveyor, and shaft in view of the work that had to be carried on under and about them. It was the danger of coming in contact with the dump-box while at work. Renne v. United States L. Co. 107 Wis. 305, 83 N. W. 473. This precise danger the plaintiff knew and understood. It is further urged that the danger to the plaintiff of being hurt in driving under the dump-box in the ordinary course of his employment was so slight that he ought not to be held to have assumed the risk. If by this is meant that the chance of his coming in contact with the dump-box was slight, it cannot avail him, for whatever that chance was he assumed the risk thereof. If it is meant that the chance of injury upon coming in contact with it was slight, we cannot agree with the contention. So in any view of the case we reach the conclusion that plaintiff assumed the risk. This result is fully sustained by the case of Jones v. Milwaukee E. R. & L. Co. 147 Wis. 427, 133 N. W. 636, and cases there cited. The trial court therefore properly directed a verdict for the defendants. By the Qourt. — Judgment affirmed.