Hanel v. Obrigewitsch

• Decision Date: 18 May 1918
• Citation: 168 N.W. 45,39 N.D. 540
• Court: North Dakota Supreme Court

168 N.W. 45

39 N.D. 540

JOE HANEL, Respondent, v. JOHN OBRIGEWITSCH, Doing Business under the Name and Style of Dickinson Roller Milling Company, Appellant

Supreme Court of North Dakota

May 18, 1918

Action for personal injuries.

Appeal from the District Court of Stark County, Honorable W. C Crawford, Judge.

Judgment for plaintiff. Defendant appeals.

Judgment of the District Court reversed, with directions.

Casey & Burgeson, for appellant.

The injury of the plaintiff was caused by his own negligence. The evidence clearly shows that he knew all about the operation of the feed-grinding machine and was familiar with all its workings, and that any dangers were clear and apparent to one of his knowledge and intelligence. Kroger v. Cumberland Fruit Package Co., 130 N.W. 513.

"Where a young man nineteen years old testifies that he did not know that, if he got his fingers into the rolls of a straw cutter they would be caught thereby, and that if caught he would be injured, it is not evidence tending to establish that such were the facts, and a nonsuit is proper." Rothe v Barrett Mfg. Co., 71 N.W. 1034; Gardner v. Paine Lumber Co., 101 N.W. 700.

Where an employee of ordinary intelligence knows of dangers in connection with his employment, or where such dangers are clear, open, and apparent to such person of the age of the plaintiff, no instructions in relation thereto, from the employer, are necessary or required. Groth v Thomann, 86 N.W. 178; Crowley v. Pacific Mills Co., 19 N.W. 344; Connelly v. Eldridge, 36 N.E. 469; Berger v. St. Paul M. & M. R. Co., 38 N.W. 14; Ciriack v. Merchants' Woolen Co. (Mass.) 15 N.E. 579; De Souza v. Stafford Mills (Mass.) 30 N.E. 81; Pratt v. Prouty (Mass.) 26 N.E. 1002; Coullard v. Tecumseh Mills, 23 N.E. 730.

"An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed." Comp. Laws 1913, 6107; Truntle v. North Star Woolen Mills Co., 58 N.W. 832; Henry v. King Phillip Mills (Mass.) 29 N.E. 581; Patnode v. Warren Cotton Mills, 32 N.E. 161.

"The employer was under no obligation to warn plaintiff of the danger which was known to him, however his knowledge may have been acquired and therefore he may not have appreciated the full extent of the danger." Downey v. Sawyer (Mass.) 32 N.E. 654; Derringer v. Tatley, 34 N.D. 43.

W. F. Burnett, for respondent.

Plaintiff was inexperienced in the working or handling of such machinery, and where the master gave him wrong or improper instructions, and plaintiff relied and acted upon them, the master or employer would be liable.

The question of what instructions were given, how they were given and whether relied on by plaintiff, is properly one for the jury. Tuckett v. Am. S. & H. Laundry (Utah) 4 L.R.A.(N.S.) 990; Ross v. Double Shoals Cotton Mills, 140 N.C. 115, 52 S.E. 121.

The supreme court will not disturb the verdict of a jury if there is a question of fact necessarily involved, or if there is any evidence of negligence. Cameron v. Great Northern R. Co., 8 N.D. 124; Zink v. Lahart, 16 N.D. 56; Hall v. N. P. R. Co., 16 N.D. 60, 14 Ann Cas. 960; Umsted v. Colgate Farmers Elev. Co., 18 N.D. 309; Webb v. Dinnie Bros. 22 N.D. 377; Wyldes v. Patterson, 24 N.D. 218; Messinger v. Valley City Street & I. R. Co., 21 N.D. 82, 32 L.R.A.(N.S.) 881; Roux v. Blodgett & D. Lumber Co. (Mich.) 13 L.R.A. 728; Haines v. L. S. & M. S. R. Co., 129 Mich. 484, 89 N.W. 349; Smith v. Spokane, 16 Wash. 408, 47 P. 888; Stevenson v. Sheffield Brick & Tile Co., 151 Iowa 371, 130 N.W. 586; Yanike v. Chicago & N.W. R. Co., 149 Wis. 554, 136 N.W. 329; O'Brien v. N.W. Consol. Mill. Co., 119 Minn. 4, 137 N.W. 399.

"The test of contributory negligence or want of due care is not found in the failure to exercise the best judgment or to use the wisest precaution, but allowance may be made for the influences ordinarily governing human action, as what would, under some circumstances, be want of reasonable care, may not be such under others." Lent v. New York C. & H. R. R. Co., 120 N.Y. 467.

"Where there is a safe and an unsafe way of doing the work the master must give an unskilled servant instructions how to do it to avoid injury." Wright v. Stanley, 119 F. 330; Royer v. Tinkler, 16 Pa. S.Ct. 457; Sheetran v. Trixler Stove etc. Co., 13 Pa. S.Ct. 219.

This is true as a duty, even though the servant does not ask for instruction. Missouri P. R. Co. v. Watts, 64 Tex. 568.

BRUCE, Ch. J. GRACE, J., dissenting.

OPINION

BRUCE, Ch. J.

This is an action to recover damages for personal injuries occasioned by the hand of the plaintiff being caught and crushed between two rollers in a flour and feed mill. The plaintiff was a man of thirty-nine years of age. He had worked at the blacksmith's trade for years in Russia, before coming to the United States, and during such employment had repaired wagons, plows, etc. He does not, however, seem to have been there employed around machinery. After coming to the United States he farmed for a while and while doing so and for about eight months used an ordinary farm feed mill. He had been working for about three and one-half months at the particular employment at which he was injured, and that employment seems to have furnished all of his real knowledge of grinding machinery. The machine at which he was injured was an iron frame with three sets of rolls inclosed, about 18 inches apart and one above the other. There was an opening in the iron frame just below each set of rolls. This opening was covered by an iron door which fitted into the machine so as to prevent dust coming out, and the bottom of the door was about 6 inches above the set of rolls below. In order to get his hand caught in the rolls, it was necessary to put it in the door, and down from 4 to 6 inches before it would reach the top of the rolls, or it would have to be drawn by something or by some means down that distance. So, too, as the rolls were about 17 inches in diameter it would be necessary that the fingers should be put or drawn a few inches lower between the rolls before they would be caught.

The negligence charged is, "that the defendant carelessly and negligently failed to instruct the plaintiff in respect to the mechanism of the said grinding machine, or as to the use thereof, or as to the manner of operating the same, and neglected to warn the plaintiff relative to the risks incident thereto, and especially of the danger and risk of his hands being caught or drawn in between the rolls of said machine, although the plaintiff was ignorant of said danger and risks.

"That the defendant negligently and carelessly failed to provide a proper belt for the operation of said machine; that said machine was intended to be equipped, and should have been equipped, with a belt 6 inches in width; that prior to the time plaintiff entered the employ of the defendant, one of the belts on said machine had worn out, and the defendant negligently replaced the same with an old 4-inch belt, which was inadequate, and not of sufficient strength or width to properly operate and turn said grinder machine; and that the defendant with knowledge negligently permitted, allowed, and authorized the use of said defective, unfit, and worn belt in the operation of said machine and equipment so furnished by him, and negligently failed and neglected to warn and instruct the plaintiff of such dangerous, unfit, and defective appliance.

"That on or about the 18th day of November, 1914, while the defendant was operating said machine in the usual and ordinary manner, under instructions and by the direction of the defendant, the said machine, by reason of said defective and unfit belt and appliance, choked up and clogged, thereby making it necessary for the plaintiff in the course of his employment to clean the same to prevent injury to said machine and belting, and to protect and preserve his employer's property, and that while the plaintiff was cleaning said clogged machine in the usual and ordinary manner by reason of said defective belt, and by reason of the failure of the defendant to warn and instruct the plaintiff as to the dangers incident to the use of said defective machine and appliance, the plaintiff was injured as hereinafter set forth, to wit, while cleaning said machine in the usual and ordinary manner, and without negligence on the part of the plaintiff, the said machine which had become clogged, as hereinbefore set out, suddenly started and caught the right hand of the plaintiff between the rolls of said machine, and cut and bruised the same so that two fingers thereof had to be amputated, and all the joints of plaintiff's said hand became ankylosed so that the plaintiff has totally and permanently lost the use of said hand."

The answer is a general denial and in addition contains the defense that the plaintiff was not employed to work around the machine at all, nor did his duties take him there, and that, "further answering, the defendant alleges that the belts driving the feed mill were in first-class condition for doing the work of grinding grain and the rolls and everything connected with such work were properly covered so as to prevent accidents of any kind; that the plaintiff had no right or authority to be anywhere near such rolls, and in order for him to have his hand injured, it was necessary for him to open the door of the covering for such rolls and stick his hand in there; that the rolls between which he struck his fingers were not used for the grinding of grain at all, but were running spread apart and idle; that the defendant hired a miller for the purpose of looking after the grinding of feed as well as the grinding of flour, and it was not the duty of nor was plainti...