Ennis v. Maharajah

Wallace, Circuit Judge. While the libelant was driving a winch belonging to the steam-ship, his hand slipped from the handle of the crank-bar, and was caught and crushed in the cogs, whereby he sustained serious injury. He was in the employ of a stevedore who was engaged in lhading the ship with cargo, and had been assigned by him to work the winch. He imputes his injuries to the negligence of the steam-ship, upon the theory that the winch was unsafe because the handle came dangerously near the cogs in operating the crank-bar, and the cogs were not covered by a guard, and also because the handle w'as slippery from grease and steam that escaped from defective parts of the machine. The proofs are that the winch was, in details of structure, substantially like those in general use at the time it was built, had been used on the steamship for a dozen, years or more, and was not materially out of repair; that'such winches are still in common use upon vessels, but an improved machine has been also introduced, constructed with a guard over the cogs; and that the handle was not exceptionally slippery on the day of the accident. It also appears that the libelant was familiar with winches, having operated them for 10 or 12 years, and that he had been operating this one nearly all day before the accident took place, and had not made any complaint about it. Manifestly the libelant undertook to use a machine which he knew would endanger his hand unless he exercised due care. Owing to a momentary relaxation of proper caution, he met with such an accident as he could have foreseen. His own conduct affords the best evidence that the'machine was not exceptionally unsafe, inherently or casually. If it had been, he would not have used it without objection. All the elements of danger incident to its use were patent to him after he had used it a few minutes; yet he used it several hours, and, until he was hurt, without a complaint, or attempting to protect himself - by the simple expedient adopted after the accident by the witness Smith. • He has no just ground of complaint against the steamship. One who voluntarily undertakes to perform a service for another impliedly consents to assume the known risks incident to it, and cannot impute to the other any breach of duty or negligence founded solely upon the presence of such risks. The decree is affirmed. As the libel-ant sues in forma pauperis, the affirmance is without costs.