Dempsey v. Sawyer

• Decision Date: 20 May 1901
• Citation: 95 Me. 295,49 A. 1035
• Parties: DEMPSEY v. SAWYER.
• Court: Maine Supreme Court

49 A. 1035

95 Me. 295

DEMPSEY

v. SAWYER.

Supreme Judicial Court of Maine.

May 20, 1901.

(Official.)

Action by Michael Dempsey against John G. Sawyer for personal injuries. Verdict for plaintiff for $950. Motion for new trial. Overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, FOGLER, and POWERS, JJ.

W. H. Powell and L. C. Stearns, for plaintiff.

C. A. Bailey, for defendant.

EMERY, J. After studying the evidence, with the valuable aid of the full analysis made by the counsel, our conclusion is that we cannot hold the jury to have been unmistakably wrong in believing, and basing their verdict upon, the plaintiff's version of the events, and in drawing inferences therefrom favorable to the plaintiff. The counsel for the defendant has argued strenuously upon the facts and inferences, but the verdict of the jury outweighs even his weighty argument. The version thus sustained is substantially as follows: The plaintiff was 30 years old, and was accustomed to the work of running mill saws of various kinds, including lath saws. He was in the employ of the defendant as a workman in his mill, and was running there a circular saw machine like a lath machine, and with it sawing birch bolts into spool-wood bars. There were several saws pertaining to this machine, and as the one in use became worn it would be taken out to be filed or recut, and another and freshly-filed or recut saw would be substituted. This filing or recutting of the his was done by the defendant, and the plaintiff had nothing to do with it.

Some of these saws were so filed or cut that the teeth were too long and slim to endure the contact with the hard wood without danger of breaking and flying out, or of bending in the wood and throwing out splinters. This was found by the jury to be a defect in the saws, fraught with danger of personal injury to the workman running them carefully, and a defect known to the defendant. The plaintiff, however, before he was injured, also knew of the defect, and fully appreciated its nature and the danger of personal injury from it.

After he had been working at this machine for 17 days, and while running it in the course of his employment with due care upon his own part, a saw tooth was broken off and thrown out into his face to his injury, or a splinter was thrown out by a bent tooth with the same result. This event was the direct result of the above-described defective method of filing or cutting the saws for that kind of work. The plaintiff knew that this particular Saw was defective as stated, and knew that the injury suffered was to be apprehended from that defect, however carefully he might work.

If the above were all the material facts, there would be only one defense to this action, as all the other necessary elements of a right of action are established by the verdict, viz.: the defendant's negligence or breach of duty, the resulting injury to the plaintiff, and the absence of any contributory negligence upon his part. That one defense is this, viz. that the plaintiff had assumed the risk of the injury as his own risk. The danger of such an injury was a danger directly attendant upon even the careful use of a saw with such teeth in such work. The plaintiff knew of the defect, and appreciated the attendant danger.

Other facts, however, do appear in the plaintiff's version, which the jury have found to be true, viz.: After seeing the defect in the saws and the consequent danger, but before the injury, the plaintiff told the defendant that the teeth of the saw he was then using were too slim to stand the hard wood. The defendant shut down the machine and substituted another saw. This and the other saws after awhile showed the same defect. Finally, on the morning of the injury, the plaintiff noticed that three teeth were gone from the saw then in the machine. He started the saw, and went to work with it, and in a few minutes a tooth bent over and tore through the wood. He then went to the defendant, and had with him the following conversation: "I told Mr. Sawyer I was not going to work any longer With teeth bent in the saw, unless he would go up and fix it. He wanted to know what the matter was. I told him there was a tooth bent over in the saw. I told him I would not work unless he would go up and fix it. He said he would go up and fix it some time in the forenoon, and for me to go back and go to work, and work it as easy as I could." The plaintiff thereupon went back to his work, and, while running the saw as easily and carefully as he could, was injured from a tooth breaking or bending as above described.

Did these additional facts authorize the jury to find that at the time of the injury the plaintiff had thrown off the risk he had at first assumed?

There is an essential difference between the defense of contributory negligence and the defense of assumption of risk,—a difference often obscured, but which should be kept clear in the mind, for a correct understanding of the relative rights and duties of master and servant as to the dangers arising from the use of defective machinery or appliances. Contributory negligence is a breach of the legal duty of due care imposed by law upon the servant, however unwilling or protesting he may be. Assumption of risk is not a duty, but is purely voluntary upon the part of the servant The risk from the master's breach of duty never rests upon the protesting or even unwilling servant. Volens, not sciens, is the test Mundle v. Manufacturing Co., SO Me. 400, 30 Atl. 10; Couley v. Express Co., 87 Ma 352, 32 Atl. 905; Jones v. Investment Co., 92 Me. 565, 509, 43 Atl. 512, 69 Am. St. Rep. 535. The risk of injury to a servant from known defects in machinery or appliances is primarily upon the master, imposed upon him by law even against his protest, as the legal consequence of his breach of his legal duty to at once remedy such known defects. The risk attends the duty. The servant however, may, if he will, agree to bear such risk himself, and thus relieve the master from that risk, but until he does in fact so agree the risk remains upon him who has the duty; also, when the servant effectually throws off the risk he had once voluntarily assumed, it falls back where the law first placed it, i. e. upon the master.

There is rarely any such stipulation expressed in any contract of employment, but it is usually implied like many other stipulations. Nothing appearing to the contrary, in such a contract the servant is understood to agree to take upon himself the risk of injury from dangers visible and appreciated, even when impending from known and understood defects in the machinery or appliances furnished by the master. If such defects and dangers first appear after the servant has entered upon his work, and he makes no complaint nor request to have the defects remedied, lie is still understood to accept the risk of them. Indeed, under such circumstances, the presumption that he has assumed the risk is practically conclusive. Nevertheless it is competent for the parties in their contract of employment to negative such an understanding, and have it expressed or understood that the risk shall remain, with the duty, upon the master. It is also competent for them afterwards to cancel such an agreement, actual or presumed, once made, and thereby let the risk fall back upon the master. Indeed, the servant can himself terminate such an implied presumed, or even expressed, agreement by giving notice to the master that ...