Mississippi River Logging Co. v. Schneider

• Decision Date: 04 May 1896
• Docket Number: 238.
• Citation: 74 F. 195
• Parties: MISSISSIPPI RIVER LOGGING CO. v. SCHNEIDER.
• Court: U.S. Court of Appeals — Seventh Circuit

74 F. 195

MISSISSIPPI RIVER LOGGING CO. v. SCHNEIDER.

No. 238.

United States Court of Appeals, Seventh Circuit.

May 4, 1896

The question of the negligence of a master in failing to provide proper instruments for the use of his servants and safeguards against danger cannot be submitted to a jury upon opinions of experts as to what ought to have been provided, without showing that some such safeguards are usually and customarily employed by those engaged in similar business; for jurors are not at liberty to charge a duty upon a master, according to their own notions of what is proper, nor upon the opinion of experts, but should determine the questions of dereliction of duty by the customary observance of those in like business.

This suit was to recover damages sustained by Lawrence Schneider the defendant in error, on the 27th day of September, 1892 while in the service of the Mississippi River Logging Company, the plaintiff in error, alleged to have occurred through negligence and failure of duty on the part of the master. The plaintiff in error operated a band-saw mill in the city of Eau Claire which extended in an easterly direction on the north bank of the Eau Claire river, and fronted to the east. At the easterly end of the mill, and on its north side, was a carriage 20 feet in length, operated by steam, upon which logs were placed, and thereupon carried to a band saw located 24 feet from the easterly end of the mill, and by which the logs were sawed into lumber. Immediately west of the band saw was a line of live rollers some 40 feet in length, each roller being some 30 inches long, which moved so that the lumber was carried over them at the rate of 250 feet per minute. In direct line therewith, and extending in a westerly direction through the mill for 68 feet, was a set of dead rollers. Between the line of live rollers and the line of dead rollers was an open space or alley of the width of 3 feet. Directly south of the line of dead rollers, and parallel therewith, was an edger table 20 feet in length and the edger, the easterly end of which was 8 feet west of the easterly end of the set of dead rollers. This edger was used to trim the rough edges of the boards cut from the logs by the band saw and fashion the boards to the required widths. Directly north of the dead rollers, and parallel therewith, was a second set of dead rollers, and at a point thereon 22 feet west of the alley and 6 feet west of the westerly end of the edger was a slab saw or jump saw from 25 to 28 inches in diameter, revolving from the south, when in use, at a velocity of from 8,000 to 10,000 feet per minute. When not in use, the saw drops below the surface through a slot in the table. When raised above the table and in use, the southerly side of the saw extends nearly to the first set of dead rollers, so that if a plank passing down the live rollers upon the set of dead rollers first described was pushed or swerved from its course, and with a force sufficient to carry it 22 feet upon the dead rollers, it might come in contact with the teeth of the slab saw if in use at the time, and be thrown, by the force of the revolving saw, in the direction of the person operating the saw. The raising or lowering of the slab saw was controlled by means of a hand lever by the person operating the saw. Upon releasing the lever the saw immediately drops below the rollers and the table by force of gravity. The mode of operation with the slab saw was this: The slabs were placed over the slot on the table, and the saw raised by means of the lever. When the slab was cut, the saw dropped below the table. North of this slab saw and the set of dead rollers was a platform from which the slabs when cut were carted away. The manner of operating the mill was this: Logs were placed upon the carriage and served to the band saw. At the rear or west side of the band saw was stationed the tall sawyer, whose duty it was to start each piece of lumber cut from the log by the band saw along the live rollers toward the westerly end of the mill. At the easterly edge of the edger table was stationed the edger man, whose duty it was to receive the boards as they came from the rollers, remove them therefrom, and run them upon the edger table, and through the edger. Up to the time in question the slab saw was operated by one Larson, employed for that special purpose. The defendant in error, at the time of the injury, was some 30 years of age. He had been employed in the mill in question from April, 1892,-- some five months. Prior thereto he had worked in sawmills in the city of Eau Claire for six summer seasons, and during one summer he worked within 15 feet of an edger in the mill in which were used two circular saws. He was familiar with circular saws, band saws, and rotary saws, and their operation, and stated that he knew 'what pretty near every piece of machinery in that mill is for,' but until the date of this injury he had never, as he stated, worked on this slab saw, or upon any other machinery of like nature. He stated that men were frequently hurt in sawmills; that 'lively men got hurt; was danger where I was working. ' He further stated that if anything hit the saw it would be thrown by the force of the saw, and in the direction of its revolution. For the four months prior to the injury he had worked in the lath mill pulling lath as they came from the saws, and counting them as they came through. In this lath mill there were four or six saws in operation. He said that on the day of the injury the superintendent directed him to go upstairs and clean the elevator, and went along with him; that when he had cleaned the elevator the superintendent took him to the other side of the elevator, and told him to go and cut slabs, but afterwards stated that the expression was, 'Go help the man with the slabs,' or 'Go help the man cutting slabs;' at the time he found Larson engaged in pulling slabs from behind the saw so as to get rid of the pile in the alley; that when he arrived there Larson was sawing, and that he watched him; that Larson quitted sawing, and went behind the saw with the hook to get slabs. While Schneider was engaged in running the slab saw, the operator, whose duty it was to take the lumber from the live rollers and put it through the edger, did not or could not remove the boards fast enough, so that one board coming over the live rollers shoved the board that was ahead of it and was upon the dead rollers, and, either by the manner in which it was struck or by the act of the operator in endeavoring to secure it, the board was turned somewhat from its ordinary course, and was shoved forward upon the dead rollers and was carried against the saw, was caught upon the saw, and hurled against Schneider, inflicting the injuries complained of. The superintendent stated that to the best of his knowledge he did not tell Schneider to saw slabs at that saw, and Larson, the operator of the saw, did not see the superintendent there with Schneider, and states that Schneider commenced sawing while the witness was engaged in picking up some slabs, drawing them along the dead rollers, and that he did not direct, nor to his knowledge did any one direct, Schneider to work at the saw. At the close of the evidence the defendant below requested the court to instruct the jury to render a verdict for the defendant, which request was denied, and the defendant seasonably excepted. There was a verdict and judgment in favor of the plaintiff below, to review which this writ of error is sued out.

V. W. James and Wm. G. Challis, for plaintiff allis, for plaintiff in error.

T. F. Frawley, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

JENKINS Circuit Judge, after this statement of the case, .

In considering whether the trial court correctly refused to direct a verdict for the defendant, we are obliged to view the evidence in the light that is most favorable to the defendant in error. We must, therefore, assume that he was directed temporarily to perform a service outside of his usual employment, and one for which he had not engaged although it is not clear from the pleadings or from the evidence that such was the fact. The question arises with respect to the liability of a master in such case. In Reed v. Stockmeyer (herewith decided) 74 F. 186, we had occasion to assert some of the principles governing the relation of master and servant, and there declared that, while it is the duty of the master to provide a reasonably safe place in which the servant may perform his work, yet that he may conduct his business in the way that seems to him best, although less hazardous methods might be employed; and in such case, if the servant knows and comprehends the dangers, or is seasonably warned of them, he assumes the risk of the more hazardous method. The servant of mature age and of experience is charged by the law with knowledge of obvious dangers, and of those things that are within common observation and are according to natural law. In such case the master need not give warning of possible danger of which both parties had equal knowledge. In addition to the authorities cited in that case we add the following: Kelly v. Abbot, 63 Wis. 309, 23 N.W. 890; Railway Co. v. Love, 10 Ind. 556; Hayden v. Manufacturing Co., 29 Conn. 548; Railroad Co. v. Minnick, 23 U.S.App. 310, 316, 10 C.C.A. 1, and 61 F. 635; Railroad Co. v. Rogers, 13 U.S.App. 547, 6 C.C.A. 403, and 57 F. 378; Hewitt v. Railroad Co., 67 Mich. 61, 34 N.W. 659. The law in this regard is well stated by Judge Newman in Casey v. Railroad Co., 90 Wis. 113, 62 N.W. 624, referred to in the case of Reed v. Stockmeyer, and need not be here enlarged...