Disano v. New England Steam Brick Co.
| Decision Date | 07 April 1898 |
| Parties | DISANO v. NEW ENGLAND STEAM BRICK CO. |
| Court | Rhode Island Supreme Court |
Action by Giovanni Disano against the New England Steam Brick Company. Heard on demurrer to the declaration. Demurrer sustained.
Bassett & Mitchell, for plaintiff.
Edwards & Angell, for defendant.
This is trespass on the case for negligence. The declaration, briefly stated, sets out that the plaintiff was in the employ of the defendant corporation at the time of the injury complained of, and that it was his duty to shovel clay into a certain machine used in the process of constructing brick; that in front of said machine was a large opening, directly under which and inside of said opening were two rolls used in connection with the process aforesaid, which said opening the plaintiff was obliged to pass in shoveling the clay into said machine; and also that it was the plaintiff's duty to shovel clay into said opening and onto said rolls. And the plaintiff avers that said opening was dangerous by reason of its being unprotected by any railing, and by reason of the fact that the floor around the same was wet and slippery, because of the water and clay that would collect thereon in connection with the said shoveling. The plaintiff also avers that these facts were well known to the defendant; that it was its duty to keep the premises in a reasonably safe condition; and that it was also its duty to protect said opening by a railing or otherwise, so as to render it reasonably safe. The declaration further alleges that the defendant disregarded its duty in the premises, whereby the plaintiff, while performing his duties, and while in the exercise of due care, and while his duties were such as necessarily to divert his mind and attention from said opening, fell into the same and was seriously injured.
The defendant has demurred to the declaration on the grounds (1) that it appears by the plaintiff's declaration that the danger from the unprotected condition of the opening of the machine described in said declaration was open to the observation of the plaintiff, and therefore any risk of injury incident thereto was voluntarily assumed by him; (2) that it appears by the plaintiff's declaration that the danger from the unprotected condition of the opening of said machine by reason of the wet and slippery condition of the floor around said opening, because of the collecting of water and clay thereon, was open to the observation of the plaintiff, and any risk of injury incident thereto was voluntarily assumed by him; and (3) that it appears by the plaintiff's declaration that the risk of the accident complained of therein was incident to the employment engaged in by the plaintiff, and therefore assumed by him.
We think the demurrer should be sustained. The danger from the opening complained of was clearly an obvious one, and was as well known to the plaintiff as to the defendant; and by voluntarily consenting to work in the place described, knowing and appreciating the danger, he must be held to have assumed the risk incident to the employment. Moreover, we fail to see that the fact that two causes, viz. the wet and slippery condition of the floor and the unprotected opening, contributed to render the place dangerous, affects the question of the defendant's liability, as each of these conditions was well known to the plaintiff. Murphy v. Rubber Co., 159 Mass. 266, 34 N. E. 268; O'Neil v. Keyes, 168 Mass. 517, 47 N. E. 416. He knew of the opening. He knew of the condition of the floor in front thereof, and he evidently appreciated the danger arising therefrom, as his declaration sets out fully and clearly the hazardous situation in which he consented to work. Nor does the plaintiff allege that he had ever complained to his employer with reference to the unprotected machine in question, or made any objection to using the same in its then present condition. The case stated, then, at the most, is that of a servant voluntarily continuing in an employment involving obvious danger of personal injury, which the master might have avoided, but did not; and in such a case, in the absence of some circumstance calling for special care on the part of the master, such, for instance, as the youth, inexperience, or want of knowledge of the machine on the part of the servant, it is well settled that he takes upon himself all of the ordinary and obvious risks incident to the employment. Kelley v. Spring Co., 12 R. I. 112; Railroad Co. v. Kemper, 3 Am. Neg. Rep. 147.
But the plaintiff contends that where the duties of the servant...
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