Selhaver v. Dover Lumber Co.

• Citation: 31 Idaho 218,169 P. 1169
• Parties: ROBERT SELHAVER, Respondent, v. DOVER LUMBER COMPANY, a Corporation, Appellant
• Decision Date: 04 January 1918
• Court: United States State Supreme Court of Idaho

169 P. 1169

31 Idaho 218

ROBERT SELHAVER, Respondent, v. DOVER LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

January 4, 1918

MASTER AND SERVANT-PERSONAL INJURY-DUTY OF THE MASTER-ASSUMPTION OF RISK.

1. It is the duty of the master to exercise ordinary care, having regard to the hazards of the service, to provide the servant with reasonably safe working places, machinery, tools and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair.

2. In order to render a master liable for failure to instruct an inexperienced servant, it must appear that the injury was the result of the servant's unskilfulness or lack of knowledge.

3. Notwithstanding the defective character of the machinery, an employee assumes the risk of his employment where it is shown that he knew of the defective character of the appliances with which he was working, or that the defects were so patent and obvious that with reasonable attention he should have known of their existence, and that he comprehended the danger incident to their defective condition, or, as a reasonably prudent person, should have comprehended the danger and the risk.

4. Where an employee assumes the duty of keeping the machinery upon which he is working in proper adjustment, a failure on his part so to do is contributory negligence.

5. It is the duty of the employer to place a guard over dangerous machinery, provided it can be done consistently with a reasonably proper and effectual operation of such machinery or with the proper and effectual conduct of his business; but a failure upon the part of the employee to make proper use of a guard furnished is contributory negligence.

[As to duty of employer to guard saws, see note in Ann.Cas. 1913C 125]

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Robert N. Dunn, Judge.

Action to recover for personal injuries. Judgment for plaintiff. Reversed.

Judgment and order reversed. Costs awarded to appellant.

Danson Williams & Danson, Herman H. Taylor and George D. Lantz, for Appellant.

An operator, who has for several months worked at and about a simple machine and who understands fully the machine and its operation, cannot plead ignorance of the dangers attending its operation. The dangers were obvious and known, or would have been known to a person exercising reasonable care and prudence, which calls for the application of the doctrine of assumed risk. (Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Drake v. Union P. Ry. Co., 2 Idaho 487, 21 P. 560; Harvey v. Alturas Gold Min. Co., 3 Idaho 510, 31 P. 819; Michael v. Stanley, 75 Md. 464, 23 A. 1094; Wilson v. Steel-Edge Stamping & Retinning Co., 163 Mass. 315, 39 N.E. 1039; Ladonia Cotton Oil Co. v. Shaw, 27 Tex. Civ. 65, 65 S.W. 693; Willis v. Besser-Churchill Co., 126 Mich. 659, 86 N.W. 133; Wiggins v. E. Z. Waist Co., 83 Vt. 365, 76 A. 36; Greef v. Brown, 7 Kan. App. 394, 51 P. 926; Lowcock v. Franklin Paper Co., 169 Mass. 313, 47 N.E. 1000; Guedelhofer v. Ernsting, 23 Ind.App. 188, 55 N.E. 113; Crown v. Orr, 140 N.Y. 450, 35 N.E. 648; Levey v. Bigelow, 6 Ind. 677, 34 N.E. 128; Townsend v. Langles, 41 F. 919; Cudahy Packing Co. v. Marcan, 106 F. 645, 45 C. C. A. 515, 54 L. R. A. 258.)

The court instructed the jury that appellant was bound to exercise ordinary care to supply reasonably proper and suitable guards for the rip-saw. In the absence of statute requiring a guard, there is no duty on the part of the master to supply one. (Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Greef v. Brown, supra; Guedelhofer v. Ernsting, 23 Ind.App. 188, 55 N.E. 113; O'Connor v. Whittall, 169 Mass. 563, 48 N.E. 844; Wiley v. Batchelder, 105 Me. 536, 75 A. 47.)

"If the using of that kind of appliances was negligence per se on the part of the defendants, as plaintiff claims it was, then for the plaintiff to continue to work with those appliances for a month, during which time the complaint shows he was at work with them, prevents a recovery, as he assumed the risk." (Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Goure v. Storey, 17 Idaho 352, 105 P. 794; Duffey v. Consolidated Block Coal Co., 147 Iowa 225, 124 N.W. 609, 30 L. R. A., N. S., 1067; William Miller & Sons Co. v. Wayman (Tex. Civ.), 157 S.W. 197; 1 Labatt, Master and Servant, sec. 57, pp. 146, 147; 26 Cyc. 1225, 1226, 1188 and 1205; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465.)

Robertson & Miller and G. H. Martin, for Respondent.

The question as to whether the plaintiff was inexperienced, whether he appreciated the dangers incident to the use of the rip-saw in the condition it was in when he was injured, whether he had been warned or instructed as to such dangers, and assumption of risk and contributory negligence, and how to avoid them, are questions for the determination of the jury, unless from the evidence the minds of reasonable men would not disagree as to how the facts should be found. (Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347; Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835; Thompson on Negligence, sec. 4085; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Hinckley v. Horazdowsky, 133 Ill. 359, 23 Am. St. 618, 24 N.E. 421, 8 L. R. A. 490; Felton v. Girardy, 104 F. 127, 43 C. C. A. 439; McMillan Marble Co. v. Black, 89 Tenn. 118, 14 S.W. 479; Ziegler v. C. Gotzian & Co., 86 Minn. 290, 90 N.W. 387; Western Union Tel. Co. v. Burgess, 108 F. 26, 47 C. C. A. 168; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.)

"A master who orders his servant into new dangers, with respect to which he is inexperienced, is bound to give him suitable warning or instruction as to those dangers, to the end that he may guard himself against injury from them." (Thompson on Negligence, secs. 4055, 4065.)

It is the positive duty of a master to supply his servant with safe appliances, and he impliedly contracts with him that such appliances are reasonably safe and that there is no other danger in the use thereof than such as are obvious and necessary. (Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Tucker v. Palmberg, 28 Idaho 693, 697, 155 P. 981.)

"Where there are latent dangers or hazards incident to an occupation, of which the master knows or ought to know, it is his duty to warn the servant of them fully, and failing to do so, he is liable to him for any injury he might sustain as a consequence of such neglect, and this rule applies where the danger is patent, if, through inexperience or other cause, the servant is incompetent to fully understand and appreciate the nature and extent of the hazard." (Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 87 P. 998, 10 Ann. Cas. 1; Chiara v. Stewart Min. Co., 24 Idaho 473, 135 P. 245; Jancko v. West Coast Mfg. & Inv. Co., 34 Wash. 556, 76 P. 78; Ford v. Bodcaw Lbr. Co., 73 Ark. 49, 83 S.W. 346; Fletcher Bros. Co. v. Hyde, 36 Ind.App. 916, 75 N.E. 9.)

The obligation of the master to instruct the inexperienced servant as to the dangers and hazards of the employment and the proper methods of obviating them is peremptory, and there is no room for the application of the doctrine as to obvious risks. (Ryan v. Los Angeles Ice etc. Co., 112 Cal. 244, 44 P. 471, 32 L. R. A. 524; Ingerman v. Moore, 90 Cal. 410, 25 Am. St. 138, 27 P. 306; Jones v. Florence Min. Co., 66 Wis. 268, 57 Am. Rep. 269, 28 N.W. 207.)

The tendency of a board which is warped to spring back while it is being sawed by a circular saw is not so obvious that an inexperienced workman must be held, as a matter of law, to take cognizance of it without being warned. (Wheeler v. Wason Mfg. Co., 135 Mass. 294; Thompson v. State, 89 Wis. 253, 61 N.W. 565; Gracia v. Maestri Furniture Mfg. Co., 114 La. 371, 38 So. 275.)

It is the duty of the master, where it can be done consistently with the proper operation of the appliance, to guard dangerous machinery like this rip-saw. (Thompson on Neg., 2d ed., secs. 4017, 4018, 4021.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an action to recover damages for personal injury sustained by the respondent while operating a rip-saw in the mill of appellant. The complaint alleges that the respondent had not had any experience with said saw, or any saw similar thereto, but that notwithstanding said fact the appellant negligently directed him to work in and about said saw without giving him any instructions relative to the proper way in which to feed the same or to protect himself from injury. The complaint also alleges negligence in the appellant, in that the feed-rollers and saw were old, defective and out of repair, and that the saw was not shielded or guarded, and that because of the inexperience of the respondent and the old worn-out and unguarded condition of the said rollers and saw, the left hand of respondent came in contact with the saw, whereby three fingers of his hand were cut off.

The answer denied the material allegations of the complaint, and alleged that the respondent voluntarily assumed the risk of injury, in the manner in which the same was sustained by him, and also that the injuries received by him were the result of his own negligence proximately contributing thereto.

The evidence shows that the respondent was injured on or about September 10, 1914; that he was twenty years of age at the time of the accident; that he had been working in appellant's mill four or five months prior thereto; that he had operated the rip-saw off and on during that time, and had operated it continuously for ten or twelve days prior to the accident; that the lumber he was sawing was known as "cull" lumber; that the same was uneven and did not feed regularly through the...