Rothenberger v. Northwestern Consolidated Milling Co.

• Decision Date: 12 June 1894
• Docket Number: No. 8640.,8640.
• Citation: 57 Minn. 461
• Parties: GEORGE ROTHENBERGER <I>vs.</I> NORTHWESTERN CONSOLIDATED MILLING CO.
• Court: Minnesota Supreme Court

Page 461

57 Minn. 461

GEORGE ROTHENBERGER vs. NORTHWESTERN CONSOLIDATED MILLING CO.

No. 8640.

Supreme Court of Minnesota.

Submitted on briefs May 9, 1894.

Affirmed June 12, 1894.

Appeal by defendant, the Northwestern Consolidated Milling Company, a corporation, from an order of the District Court of Hennepin County, Thomas Canty, J., made December 2, 1893, denying its motion for a new trial.

The plaintiff, George Rothenberger, was employed to dust the machines and sweep one of the floors in defendant's flouring mill at Minneapolis. He commenced work in January, 1892. On this

floor defendant operated a large number of machines known as centrifugal reels enclosed in wooden casings. As a part of each machine there was a shaft projecting through the casing and on it outside was a wheel with cogs fitting into another cog wheel turning with great velocity. These outside wheels were not covered or guarded and plaintiff in April spoke to the foreman about them and the danger, and he promised to cover them, and plaintiff relied on the promise. They were not covered however and on May 6, 1892, the fingers on plaintiff's right hand were caught between these two cog wheels on one of the machines and injured so that three of them were amputated. He brought this action and had a verdict for $500. Defendant moved for a new trial. Being denied it appeals.

Keith, Evans, Thompson & Fairchild, for appellant.

Rea, Hubachek & Healy, for respondent.

COLLINS, J.

It is well settled in this state, as it is elsewhere, that if a servant who has knowledge of defects in the instrumentalities furnished for his use, or in machinery about which he is employed, gives notice thereof to the master, who thereupon promises that the defects shall be remedied, the servant may recover for an injury caused thereby, at least where the master requested or induced the servant to continue in the service, and the injury occurred within the time at which the defects were promised to be remedied, and where the instrumentality or machinery was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use or work about it. Under such circumstances the risk attendant upon the use of instrumentalities or machinery known by the servant to be dangerously defective is shifted upon the master, he assuming the risk previously borne by the servant.

But it is urged in behalf of defendant that, upon the proofs adduced on the trial of this case, plaintiff utterly failed to bring himself within the rule as to the assumption of risk by the master. It is true that plaintiff, when complaining of the gearing into which his hand was afterwards drawn, did not notify defendant's head millwright or foreman that, unless coverings were put upon the exposed and dangerous parts, he should quit defendant's employ, nor did he say, in so many words, that he apprehended danger to himself, but positive assertions and statements of this character are not absolutely necessary. According to the best-considered cases, the real question to be determined is whether, under all the circumstances, as they appear in each case, the master had a right to believe, and did believe, that the servant intended to waive his objection to the defect of which he has complained. This is a question of...