Stephenson v. Duncan

• Decision Date: 29 January 1889
• Citation: 73 Wis. 404,41 N.W. 337
• Parties: STEPHENSON v. DUNCAN.
• Court: Wisconsin Supreme Court

73 Wis. 404

41 N.W. 337

STEPHENSON

v.DUNCAN.

Supreme Court of Wisconsin.

Jan. 29, 1889.

Appeal from circuit court, Taylor county.

Action by James E. Stephenson against John Duncan for personal injuries alleged to have resulted from defendant's negligence in not providing a covering for a saw in defendant's shingle-mill, in which plaintiff was employed, and in not providing a safe passage-way before the same. A demurrer to the complaint for not stating facts sufficient to constitute a cause of action was overruled, and defendant appeals.Cate, Jones & Sanborn, for appellant.

Schweppe & Foster, for respondent.

COLE, C. J.

When the plaintiff entered upon his employment of operating the machinery and shingle-mill owned by the defendant, the unsafe condition of such shinglemill, the fact that the saw was not covered, and that it projected over its frame partly across the narrow passage-way along which he was obliged to go in tightening and loosening the belt, were all matters presumably within his knowledge. The condition of the passage-way and the relation of the saw to it, if unsafe and dangerous, would be seen and comprehended by a person of common intelligence, and the plaintiff assumed the risk incident to the service when he undertook the employment. Under such circumstances, the plaintiff could not maintain an action for the injury he sustained because the defendant failed to provide safe machinery, and did not cover the saw with a substantial covering, nor provide a safe passage-way in place of the defective one; for, as we have said, he must be held to have assumed the risk by accepting and remaining in the service with knowledge of the existing defects in the machinery. The rule of law upon this subject has been laid down by this court in the following language: “It is well settled that the master may conduct his business in his own way, although another method might be less hazardous; and the servant takes the risk of the more hazardous method as well, if he knows the danger attending the business in the manner in which it is conducted. Hence, if a servant, knowing the hazards of his employment, as the business is conducted, is injured while employed in such business, he cannot maintain an action against the master for such injury, merely because he may be able to show that there was a safer mode in which the business might have been conducted, and that, had it been conducted in that mode, he would not have been injured.” Naylor v. Railway Co., 53 Wis. 661, 11 N. W. Rep. 24,Hobbs v Stauer, 62 Wis. 108, 22 N. W. Rep. 153. These decisions are all we deem it necessary to cite in reply to the argument that, as between master and servant, it is the duty of the former to provide as suitable means and appliances to enable the servant to do his work safely, as the hazards incident to the employment will permit. This is undoubtedly the general rule, but it cannot apply here, for the reason that the plaintiff must be deemed to have entered upon the employment with the full knowledge of the existing defects; therefore he assumed the risk. The fact that the saw was not covered, that the passage-way was narrow and dangerous, would be seen at a glance. But probably the liability of the defendant was not intended to be rested upon the ground that the machinery used was not originally in a safe condition, for it is further...