Glenmont Lumber Co. v. Roy

• Decision Date: 12 November 1903
• Docket Number: 1,844.
• Parties: GLENMONT LUMBER CO. v. ROY.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F. 524

GLENMONT LUMBER CO. v. ROY.

No. 1,844.

United States Court of Appeals, Eighth Circuit.

November 12, 1903

Where the uncontradicted evidence shows that defects in tools used were obvious and the danger apparent, and an employé continued in his service without complaint, directing a verdict for defendant is proper.

Syllabus by the Court

The master is not required to supply the best, newest, or safest appliances to secure the safety of his servants, nor is he bound to insure the safety of the place or the machinery he furnishes. His duty is discharged if he exercises ordinary care to furnish a place and appliances reasonably safe and suitable for the use of his employes.

The factory act of Minnesota (Gen. St. 1894, Sec. 2248), which requires employers to guard or fence dangerous machinery as far as practicable, does not abolish the defense of assumption of risk. It does not deprive parties of the right to contract regarding the risks of their avocations.

A servant, by entering or continuing in the employment of a master without complaint, assumes the risks and dangers of the service which he knows and appreciates, and those which an ordinarily prudent person of his capacity and intelligence would have known and appreciated in his situation, including the risks and dangers which arise from the failure of a master to fully discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and reasonably safe appliances to use.

An employe cannot be heard to say that he did not appreciate or realize the danger, where the defects were obvious, and the dangers would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.

Where the uncontradicted evidence discloses the fact that the defects in the place or in the tools were obvious, and the danger from them apparent to an ordinarily prudent person of the experience and capacity of the servant, when placed in his situation, and the employe entered upon or continued in the service without complaint, the defense of assumption of risk is conclusively established, and the court should instruct the jury to return a verdict for the defendant.

A young man, 20 years of age, who had worked around sawmills for some months, and had used a cant hook 6 days, stood upon a bumper 18 inches high, composed of a timber 12 by 12, and 12 feet long, and a timber 6 by 12, and from 6 to 10 feet long placed upon it so that it would present a fact of 6 inches took hold of a log lying upon an inclined deck by the side of the bumper with a cant hook, lifted, his cant hook slipped and he fell forward onto the carriage of the sawmill, and was borne against the saw, so that his hand was injured. The saw was boxed, with the exception of the space requisite for the movement of logs against it which were to be sawed. There was no post at the lower end of the bumper for the workman to steady himself against, as there was in some other mills. The bumper was somewhat shaky, and the cant hook was loose in the socket. The plaintiff sought to recover damages on account of these defects. They were open and visible, and he testified that he was aware of them all, but that he did not realize the danger.

Held, the defects were obvious, and the dangers so apparent to an ordinarily prudent person of his intelligence and ability that by continuing in the employment five days he assumed the risk of these defects and dangers, and that the court should have instructed the jury to return a verdict for the defendant.

H. H. Grace, for plaintiff in error.

R. J. Montague, for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, R, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below, Theodore Roy, brought an action against the Glenmont Lumber Company, a corporation, for alleged negligence which he averred caused him to fall upon a log carriage in the defendant's sawmill, and to lose a part of his hand against the saw. There was a verdict and judgment for the plaintiff, and the alleged error in the trial is that the court below refused to instruct the jury to return a verdict for the defendant. The acts of negligence upon which the plaintiff relied when the evidence closed were a failure to properly box the saw, a failure to erect and maintain a square post near the lower end of the bumper, the fact that the bumper was shaky and too narrow at the top, and the fact that the cant hook which the plaintiff used was worn, and the hook was loose in its socket. The material facts disclosed by the evidence were not in dispute, and they were these: The plaintiff was a young man, 20 years of age, when, on October 13, 1900, he was injured. He had been working around the sawmill all the preceding summer. The logs were drawn into the mill by a chain, and then thrown by machinery to the right and left, where they rolled down log decks in the form of inclined planes to carriages, on which they were borne to the bank saws and cut into lumber. The log deck on which this accident happened was about 20 feet long and 12 feet wide. With the exception of a small pit near the rear end of it, it was planked over, and there were two skids of railroad iron 8 inches high upon it, on which the logs rolled down to the carriage. Across the forward end of this deck was a bumper constructed to prevent the rolling logs from striking the sawyer, who stood below, opposite the saw, and near the forward end of the log deck. The saw was boxed, with the exception of a space of sufficient size to permit the largest logs sawed in that mill to pass through the boxes and be turned into lumber. The bumper was constructed of two timbers-- one 12 by 12, which was 12 feet long, and the other 12 by 6, which was from 6 to 10 feet long. The latter was laid on the former, so that its face was 18 inches above the deck. This face, originally 6 inches wide, had become worn by use until it was 5 1/2 inches in width. These timbers were secured by bolts, which either passed through them and through the log deck below, or through the upper timber and into the lower one, where they were fastened in place by nuts. The frequent blows of the rolling logs upon the timbers had made the bolts wabbly and the bumper shaky. There was no iron or other post near the lower end of the bumper for the workman to steady himself with, although posts of this character were maintained in similar positions in some other sawmills. The cant hook was loose in its socket, had no prongs at the foot of the handle, such as projected from some such tools, and the point of the hook was dull and about an inch long, while those of some other hooks were two inches in length. Until four or five days before the accident Roy had been working on the mill pond, driving logs up to the chain with a pick pole. The foreman then assigned him to tend the chain. He told the foreman that he had a job that he could do pretty well, and that he did not see why he changed him. But the foreman directed him to proceed to take charge of the logs as they were drawn up by the chain. His duties were to stop the logs at the proper place as they came into the mill, and to throw them to the right and to the left by the means of levers which actuated machinery which accomplished this result. Sometimes as the logs rolled down the deck their forward ends would strike against the bumper, and the would stick. It was then the plaintiff's duty to loosen and roll them down by the use of the cant hook. This result could be accomplished either by walking out on the bumper and using the cant hook on the forward end of the log, or by going to its rear end and using the cant hook there. After Roy had been at work in this position four or five days, and after he had repeatedly walked out upon the bumper and used the cant hook to roll logs down the deck every day of his employment as a tender of the chain, four logs stuck; he walked out upon the bumper, took hold of one of them with the cant hook, lifted, the hook slipped, he forward onto the carriage below, and one of his hands was borne against the saw and injured before it could be extricated.

The condition of the saw and of the boxing about it, and the absence of any post near the lower end of the bumper, if defects, were open, visible, and obvious ones. The following testimony of one of the plaintiff's witnesses--the workman who had preceded him in the discharge of the duty of tending the chain-- was uncontradicted:

'Q. Working on the log deck, you can see your work as plainly as you can see this table? A. Yes, sir. Q. You can see that log deck as plainly as you can see anything? A. Yes, sir. Q. And you could see these timbers that make up the bumper just as plainly as you can see either of these tables in the courtroom? A. Yes, sir. Q. It is all in plain, open sight? A. Yes, sir. Q. You could see it just the way-- that one stick of timber was put on top of the other-- could you not? A. Yes, sir. Q. But you walked on it, and you walked there freely, whether it was loose or whether it was tight? A. certainly. Q. You couldn't walk on there without knowing whether it was loose or whether it was tight, could you? A. No, sir. Q. A man couldn't walk on there more than once without knowing just what condition it was in, could he? A. No, sir. Q. And you worked there for a long time, you say? A. yes, sir. * * * Q. There is nothing about a cant hook, so far as the manner in which it is put up and made, but that you can see how it is made, and how it works, by looking at it, taking it up, and handling it? A. No, sir. Q. If a cant hook is loose, you will know it just as soon as you take it up in your hand, will you not? A. Why, yes; certainly. Q. You couldn't take it up and

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