41 N.W. 337 (Wis. 1889), Stephenson v. Duncan

Citation:41 N.W. 337, 73 Wis. 404
Opinion Judge:ORSAMUS COLE, C. J.
Party Name:STEPHENSON, Respondent, v. DUNCAN, Appellant
Attorney:The cause was submitted for the appellant on the brief of Cate, Jones & Sanborn, and for the respondent on that of Schweppe & Foster.
Case Date:January 29, 1889
Court:Supreme Court of Wisconsin
 
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Page 337

41 N.W. 337 (Wis. 1889)

73 Wis. 404

STEPHENSON, Respondent,

v.

DUNCAN, Appellant

Supreme Court of Wisconsin

January 29, 1889

Argued January 14, 1889.

APPEAL from the Circuit Court for Taylor County.

Action to recover damages for personal injuries alleged to have resulted from the defendant's negligence in not providing a proper and safe covering for a saw in his shingle-mill, in which the plaintiff was employed, and in not providing a safe and proper passage-way by such saw, and in allowing the saw to project over its frame and partly over the passage-way along which the plaintiff was obliged to pass in the performance of his duties. Other allegations of the complaint will sufficiently appear from the opinion. The defendant appeals from an order overruling a general demurrer to the complaint.

Reversed and cause remanded.

The cause was submitted for the appellant on the brief of Cate, Jones & Sanborn, and for the respondent on that of Schweppe & Foster.

To the point that the promise of a master to remedy a defect of which he has been notified by a workman is binding upon him, and that if he fails to remedy it he is liable for damages caused thereby after the expiration of the time within which it could have been remedied, counsel for respondent cited Shearm. & Redf. on Neg. 126, and note; Parody v. C., M. & St. P. R. Co. 15 F. 205; Laning v. N. Y. C. R. Co. 49 N.Y. 521; Steen v. St. P. & D. R. Co. 37 Minn. 310; Greene v. M. & St. L. R. Co. 31 id. 248.

OPINION

[73 Wis. 405] ORSAMUS 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 shingle-mill, 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 the action for the injury he sustained because the defendant failed to provide safe machinery and did not cover the saw with a...

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