Mississippi River Logging Co. v. Schneider

JENKINS, Circuit Judge, after this statement of the case, delivered the opinion of the court. In considering whether the trial court correctly refused to direct a verdict for the defendant, we are obliged to view the evidence in the light that is most favorable to the defendant in error. We must., therefore, assume that lie was directed temporarily to perform a service outside of his usual employment, and one for which he had not engaged; although it is not clear from the pleadings or fto-m the evidence that such was tile fact. The question atices with respect to the liability of a master in such case. In Reed v. Stockmeyer (herewith decided) 74 Fed. 186, we had occasion to assert some of the principles governing the relation of master and servant, and there declared that, while it is the duty of the master to provide a reasonably safe place in which the servant may perform his work, yet that he may conduct his business in the way that seems to him best, although less hazardous methods might be employed; and In such case, 11 the servant knows and comprehends the dangers, or is seasonably warned of them, he assumes the risk of the more hazardous method. The servant of mature age and of experience is charged by the law with knowledge of obvious dangers, and of those things that are within common observation and are according to natural law. In such case the master need not give warning of possible danger of which both parlies had equal knowledge. In addition to the authorities cited in that case we add the following: Kelly v. Abbot, 63 Wis. 309, 23 N. W. 890; Railway Co. v. Love, 10 Ind. 556; — 198 — Hayden v. Manufacturing Co., 29 Conn. 548; Railroad Co. v. Minnick, 23 U. S. App. 310, 316, 10 C. C. A. 1, and 61 Fed. 635; Railroad Co. v. Rogers, 13 U. S. App. 547, 6 C. C. A. 403, and 57 Fed. 378; Hewitt v. Railroad Co., 67 Mich. 61, 34 N. W. 659. The law in this regard is well stated by Judge Newman in Casey v. Railroad Co., 90 Wis. 113, 62 N. W. 624, referred to in the case of Reed v. Stockmeyer, and need not here be enlarged upon. While it is the duty of the master to provide such appliances as are suitable and reasonably safe, that duty is one of ordinary care. The master is not required to supply the best or the safest or the newest appliances, but such as can with reasonable care be used without danger except such as.is reasonably incident to the business. The master is not an insurer of the safety of the servant. He is bound, as is the servant, to exercise ordinary care; and with respect to safeguards when dangerous machinery is employed the test of negligence is the ordinary and prudent usage of the business, — what safeguards are commonly adopted by those in like business. Titus v. Railway Co., 136 Pa. St. 618, 20 Atl. 517. The facts upon which our judgment must proceed are without contention. So far as the evidence discloses, the machinery in this mill was in all respects perfect. It is urged that the master failed in his duty in neglecting to provide some guard or protection which would prevent a plank forced over the dead rollers from coming in contact with the-jump saw. It is contended that the evidence at the trial disclosed that some such precaution was usually and customarily employed in mills of like character, and that, if the testimony was conflicting, the fact was to be resolved by the jury, and not by the court. In the consideration, however, of the ruling upon the motion to direct a verdict, the court may properly consider the evidence so far as to determine whether any evidence has been given establishing such custom. There were several witnesses sworn .upon that question on the'part of the plaintiil below. The witness Brown gave his opinion that some such protection was necessary, but with respect to the fact of general usage the only mill which he could state which employed such a device was Ball & Culbertson's mill, where the swing-saw was used, that swung back into a box to keep anything from running upon it while not in use. When in use there was no protection. So here the jump saw, when not in use, sank below the table, and was only exposed when in use. The witness Carr testified to his knowledge of a device of a timber four by six, fastened with iron from below, coming down over whatever is being cut, and holding the material down over the table, so that it cannot rise. That device, he said, was in use in the Pine Tree Mill and in the Wyman & Ingram Mill; but the witness said that lie could not say that such devices were generally used in sawmills in the state of Wisconsin; and that, notwithstanding he had resided in the state 14 years, and had been in a good many mills, he does not recollect of seeing them in any other mill than this mentioned. This device, it was subsequently explained by the witness F. Mc-Donough, was employed to hold down and together a pile of slabs cut by the saw at one time, but was not used when slabs were cut — 199 — singly, as here. In answer to a question whether it bad ever been customary to use any mechanical device to prevent slabs or boards coming in contact with the jump saw except the dead rollers themselves, the witness answered, “I never saw anything1 to prevent, only the dead rollers.” And in the Pine Tree Mill, where a jump saw was used, he stated that the live rollers ran past it or to it. The witness Jladley testified that he had seen a device consisting of a piece underneath the table, so adjusted that the operator of the saw could throw a piece up ahead of the saw two inches high when he perceived lumber coming down upon the saw, but he said that he could not say that the device was in general use on jump saws at that time. -Here, under like* circumstances, the saw was dropped below1 the table by the operator. The witness Smith testified to the means used in but one mill, consisting of a stop a,t a point on the rollers in line with the band saw between the band saw and the slab saw and about four feet distant from the slab saw, and was operated by the man at the edger. That mill was differently arranged from the one here. In that mill there were two sets oí live rolls, and “something to keep up the motion to some extent from one end of the mill to the other.” This device was placed alongside of the rollers upon which the slab saw was located, and on the set of rollers, in line with the band saw; but there was no guard or contrivance on the set of rollers upon which the jump saw was located to prevent; lumber passing over the live rollers from coming in contact with it; but he said he had no knowledge of a general practice with reference to placing guards over these jump saws. The witness Bowman could not testify in regard io mills in the slate of Wisconsin, but stated that in a mill in Minnesota, constructed by him, there were what were known as the “lift-up” guards, and in that mill the slab saw was a swing saw, and was located in a direct line with the band saw, and that the live rollers extended to the slab saw. The testimony on the part of the defendant was to the effect that there was no necessity for any guard or contrivance io prevent lumber coming in contact with the slab saw where it was located out of i he line; of the live rollers designed to carry the lumber, and that no such guards in such case were in general use. There were six witnesses who testified to that fact upon the part of the defendant below. The testimony of the plaintiff below is wholly insufficient to establish a general usage. It shows that in some few mills some sort of contrivance is used where the saw is in line with the rollers designed to carry the lumber. The lumber projected from the; live rollers upon the dead rollers would soon lose its momentum, and be cast but a few feet thereon. The length of the dead rollers here was ordinarily more than sufficient to prevent the lumber being thrown against the saw, and, as we view the evidence, there is in fact no testimony which shows any general usage to supply jump saws, located as was the one in question, with any appliance to prevent lumber being projected against the saw. The case in this respect is on all fours with the case of Ship Building Co. v. Nuttall, 119 Pa. St. 149, 158, 13 Atl. 65. In that case one ground of negligence was — 200 — asserted to be the failure of the master to provide a circular saw with an attachment or “guard” or “spreader,” which would prevent loose strips of wood from being caught between the teeth of the saw, and thrown backward upon and injuring those engaged in the service. The court observes: “As to failure to provide a spreader, the case of the plaintiff is, if possible, more clearly without merit. The testimony shows that such an attachment is not in general use, and there is no general agreement among mill owners or practical sawyers that it is a desirable or useful attachment. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried -by this test, the saw of the defendant is such an one as the company had a right to use, because it is such as is commonly used by mill owners; and it was error to leave to the jury any question of negligence based upon the failure to provide a spreader.” It was not shown that the safeguard, the want of which is complained of, was generally adopted by those in like business, and it will not answer to submit to a jury the question of the negligence of the master upon opinions of experts stating what ought to have been provided, and to charge one with negligence for failure to provide accordingly. Unless it was shown that some such safeguard is usually and customarily employed by those engaged in similar business and under like circumstances, there was no proof of failure of duty by the master in omitting to employ it here. It is error to submit to a jury the question whether the master should have employed the device, in the absence of sufficient evidence of general usage; for jurors are not at liberty to charge a duty upon the master according to their own notions of what was proper under the circumstances, nor upon the opinion of experts of what was desirable and prudent; but they should determine the question of dereliction in duty by the master by the customary observance of those in like business; or, as the thought was well expressed in Titus v. Railway Co., supra: “Jurors must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.” See, also, Tinkham v. Sawyer, 153 Mass. 485, 27 N. E. 6. We conclude, therefore, that the evidence does not establish any failure of duty upon the part of the master in omitting to'provide the safeguard considered. If, however, it may be assumed that there was failure of duty hero by the master with respect to the safeguard, its absence was an open, obvious fact. That it was wanting should have been observed by one of even slight experience in the business; certainly by one in the exercise of that ordinary care that the law casts upon the servant. The defendant in error was a man of mature years. He had had some six years’ experience in this business. He was of ordinary intelligence, and was no novice. He knew the operation and the use of .every piece of machinery employed. He knew (hat the service was a dangerous one, and that even with the utmost care accidents would occur. He knew that material striking the revolving saw would be hurled with great force towards the operator. What warning from the master could have given him better instruction than he had, — instruction acquired by the experience of six years — 201 — in the vicinity of dangerous machinery? In this connection we may well employ the language of the supreme .court of Pennsylvania in the cace of Ship Building Co. v. Nuttall, to which we have before referred as a case like the one in hand. Mr. Justice Williams, speaking for the court, says: “All that could have boon told him by way of warning was that there was a possibility of injury from a falling stick, but that during many years no such accident had happened in the defendant's works. That the omission of such a warning to a. mechanic under the circumstances of this case was a failure of duty on the part of the employer, is simply preposterous. There is risk and liability to accident in all employments, but the law does not require an employer to protect his employes against the possibility of an accident. Tie is bound to 'provide suitable machinery and implements for their use, see that they are in reasonable order, and that the usual precautions against accident are taken. The possibility of accident which lies beyond is a risk which every mechanic and every laborer takes and must take as incidental to every form of activity.” It is said, however, that the servant could not anticipate that the operator at the edger would not remove one piece of lumber before another coming over the live rollers would strike it, force it over the space of dead rollers between the alley and the slab saw, nor that it would be swerved -from its natural course by the direction given to it, either by the impinging force or by the operator in striving to secure it. That is true, and is equally true with respect to the master. The possibility was as palpable to the understanding of the one as to the other. The mill had been operated for some 10 or 11 years without that safeguard, and without accident from that cause. In marshaling the dangers that ordinary care would seek to guard against, it could hardly be anticipated that the piece of lumber would be projected such a distance over dead rollers, and would also be so swerved from its course that it would strike the slab saw, 22 feet away from the end of the line of live rollers, and north of the line of dead rollers extended westerly upon a direct line from the live rollers. Nor can it be said that the danger was a concealed one, growing out of any defective machinery. It arose from the manner of operation, not because of defective machinery; and therefore was a risk incident to the business. It is not necessary that a servant should be warned of every possible manner in which injury may occur. He must examine his surroundings, and take notice of obvious dangers and the operation of familiar laws. It is sufficient if he, being ignorant, be warned of the dangerous nature of the employment, and how safely to operate a dangerous appliance. Here the injury arose, not from the maimer of the operation of the slab saw, but the manner in which other operatives performed or failed to perform their duties. The danger arising from such failure was necessarily incident to the employment. The servant cannot justly demand that he shall be warned against risks that are as obvious to him as to the master. Kohn v. McNulta, 147 U. S. 238, 241, 13 Sup. Ct. 298; Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530. It is further insisted that the master was guilty of actionable negligence in failing to provide a sufficient number of servants, — 202 — and particularly in the failure — First, to provide two men, instead of one, to do the work in which the slab sawyer was engaged; and, second, to provide two men to work at the edger. and to receive lumber coming from the live rollers. With respect to the first alleged' failure of duty, it is needful only to say that, according to the contention of the defendant in error, two men were engaged — Larson and himself — upon the work of the slab saw, and that the injury was in no way occasioned by the operation of the slab saw, and could not have been prevented if any number of men had been employed thereat. With respect to the second specification of failure of duty, it is to be observed that the test of the master’s duty in this particular is the same as with respect to the presence of a safeguard, — what is usual and customary in like business. Upon this subject, of the five witnesses produced by the defendant in error, Brown, Carr, and Hadley simply give an opinion of the necessity of two servants to do such work, but fail to declare the custom in the business. The witness Smith states that at one mill there was a man employed to assist the edger, and that in that mill there was, in addition to the band saw, a re-saw, not present in the mill here, the product of which was also passed through the edger; and it was subsequently explained — if explanation were necessary — that, with double the product coming to the edger from both sides of it, one man would not be able to perform the labor. This is far from establishing either’ custom, usage, or necessity with respect to mills like the one in question. The witness Bowman speaks of an assistant to the edger in the only mill to which he referred. There skids were located between the edger and the live, rollers to receive the lumber coming over the rollers from the band mill; the edger being some four feet from the roller. Under these conditions the man operating the edger had nothing to do with stopping the lumber coming from the rollers. He received the lumber from the skid, his assistant removing the lumber from the rollers to the skid; and at that mill ihe live rollers extended from the band saw to the jump or slab saw. The conditions of things there and here were quite dissimilar. The evidence entirely fails to establish either necessity for two men at the edger, under the circumstances here existing, or that it was customary to engage more than one man for such service. Upon the whole case, therefore, there was no sufficient evidence to establish failure of duty upon the master here. It was consequently the duty of the trial court, upon proper request, at the conclusion of the evidence, to have withdrawn the case from the jury, and directed a verdict as requested by the defendant below. The judgment must therefore be reversed, and the cause remanded, with directions to the court below to award a new trial.