McFarlan Carriage Company v. Potter
| Decision Date | 20 April 1899 |
| Docket Number | 18,800 |
| Citation | 53 N.E. 465,153 Ind. 107 |
| Parties | The McFarlan Carriage Company v. Potter |
| Court | Indiana Supreme Court |
Rehearing Denied July 7, 1899.
From the Rush Circuit Court.
Affirmed.
W. H H. Miller, J. B. Elam, McKee, Little & Frost and Smith Cambern & Smith, for appellant.
R. Conner, J. M. McIntosh, L. Conner and Morris, Innis & Morgan, for appellee.
Appellee brought this suit to recover damages for injuries received while operating a rip-saw as an employe of appellant. The complaint is in one paragraph and, in substance, charges that the plaintiff, being in the employ of the defendant, by order of defendant, was operating a rip-saw in the defendant's factory; that the table in which said saw was situate, and said saw, at the time the plaintiff received his injuries, were defective and out of repair in the following particulars: (1) That the top of the table should have been level but was not level on account of the floor on which it stood giving away, leaving the top of the table in a slanting position; (2) the slot irons upon the table should have been smooth and even with the top of the table, but had become raised one-fourth of an inch above the top of the table; (3) that said saw should have stood perpendicularly; that it did, in fact, stand one-fourth of an inch out of perpendicular; that the defendant knew said defects existed several days before the injury; that on account of said defects the hazard of operating said saw was greatly increased; that on the 12th day of December, 1895, while operating said saw, by order of defendant, and by and on account of said defects in said saw and table a piece of timber he was then cutting by said saw was caught by said saw in such manner as to turn it over quickly, and, being thus quickly and unexpectedly turned, the hand of the plaintiff was thereby thrown against the saw and destroyed.
A demurrer to the complaint was overruled. Trial upon the complaint and general denial and verdict and judgment for $ 2,000. Error is assigned upon the overruling of the demurrer to the complaint, and the overruling of appellant's motion for a new trial. The point of attack upon the complaint is found in these words: "That the defendant from time to time, before the plaintiff received his injuries, promised the plaintiff that it would cause said saw and table to be repaired; that on the morning of said day the defendant promised the plaintiff that it would repair said saw and table as soon as the job of work that said company was then working on was completed, and that said plaintiff, relying upon said promise, by order of the defendant, commenced to operate said saw, and was injured within two hours thereafter, and before said job of work was completed."
Appellant's learned counsel in their brief forcibly urge that the above averments make the complaint insufficient for three reasons: (1) Because the promise to repair related to patent defects; that is, such as were open and known equally to employer and employe; (2) because the promise to repair was too indefinite and uncertain to justify reliance thereon; (3) because it is shown that the injury was received before the time fixed for performance of the promise to repair. Appellee, with equal vigor, combats each proposition.
There are certain underlying principles about which courts and lawyers are agreed. Among them are: (1) That in establishing the relation of employer and employe certain reciprocal duties are implied, namely: On the part of the employer that he will furnish to the employe reasonably safe instrumentalities and place with which and in which to work; and on the part of the employe that he will render suitable service, and obey the reasonable commands of his employer. (2) That the employe assumes all the known and usual dangers incident to the place and instrumentalities with which he works. Whether these mutual obligations are contractual, or spring from public policy, is not well settled; but that each is held to a strict accountability with respect to these requirements is a rule of universal application. (3) Another familiar rule is that during the employment, if the instrumentalities used get out of repair, either from natural wear, displacement, or breakage, thereby increasing the danger, and the employe knows of the defect, or by the exercise of reasonable caution might have known it, and he goes on without complaint or notice to his employer, he will be held to have assumed the augmented peril. This latter rule rests upon the principle that while it is the duty of the employer to furnish reasonably safe machinery, and to make reasonable inspections for the discovery of defects, yet, it is equally the duty of the employe to be vigilant for his own safety, and if he carelessly overlooks, or silently acquiesces in a dangerous situation that results in his injury, the fault is laid at his door, and he cannot recover therefor.
Upon the general rule of assumption of risk by an employe, who, with notice, continues in the service, the courts have humanely and justly engrafted an exception that is now as well established as the rule itself. The exception arises when in the course of the employment the employe discovers that the machine or implement with which he is required to work has become defective, and more dangerous, and, upon his notice to the employer, the latter promises to make needed repairs. The exception is nowhere denied, but in its application there is some divergence. The doctrine of one class of instances is stated by Wharton as follows: Wharton's Negligence (2nd ed.), § 220. Or, in other words, that the exception prevails in cases where the defect promised to be repaired is latent, and does not prevail where it is patent.
Appellant earnestly insists that the ground here stated is the only rational and defensible basis for the exception, and that the complaint is bad for disclosing that the defects in the saw and table were clearly obvious; and the resumption of work by appellee, being an adult, and familiar with the saw, and the dangers likely to result from the situation, even after the promise of repairs when the job was completed, constituted contributory negligence. We are not able to yield our assent to the limitation of the exception thus contended for, nor do we believe that this limitation supplies the only rational and defensible ground for the exception. As we have seen, in a general employment, the implied undertaking on the part of the employer is that he will furnish the employe with a reasonably safe place and appliances with which to work; and on the part of the employe that he will assume the risk of all ordinary and usual dangers incident to the use of such instrumentalities as are furnished him by his employer. Springing from the relation is also the equally incumbent duty on the part of the employer to be vigilant for the safety of his employe and to make reasonable inspection for the discovery of defects in the machinery used. Within the chosen sphere of mutual duty, during the progress of the employment, both employer and employe must be diligent, and cooperate to secure the employe against personal injury,-- the employe to protect himself against all known and obvious dangers, and the employer to see to it that the instrumentalities furnished by him are reasonably safe, and free from lurking and unexpected peril. The failure to perform this reciprocal duty is negligence. Another kindred rule promotive of safety to the employe requires the employer, upon learning of any latent peril or defect in the place or appliances, promptly to notify the employe, that he may be on his special guard to avoid it. It is likewise the duty of the employe, upon learning of any such defect, promptly to notify his employer, that the latter may right himself by restoring the impaired machinery to the standard of his duty. And it is immaterial whether the defect of which the employe complains be latent or obvious, for after discovery the latent defect is as fully known to him as is the open one. If the employe has...
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