Swoboda v. Ward

• Decision Date: 08 April 1879
• Court: Michigan Supreme Court
• Parties: Mathias Swoboda v. Catharine L. Ward

40 Mich. 420

Mathias Swoboda v. Catharine L. Ward

Supreme Court of Michigan

April 8, 1879

Submitted January 29, 1879

Error to Mason. Submitted Jan. 29. Decided April 8.

Judgment reversed with costs and a new trial ordered.

Isaac Gibson for plaintiff in error. A general custom in business may be shown, McGraw v. Sturgeon, 29 Mich. 426; Dumont v. Kellogg, id., 420; Clark v. Cox, 32 Mich 204; Merick v. McNally, 26 Mich. 374; Power v Kane, 5 Wis. 265; it need not be settled or universal Bancroft v. Peters, 4 Mich. 619; in an action for an injury, plaintiff's negligence cannot be presumed, Button v. H. R. R. R. Co., 18 N.Y. 248; he can recover if he used ordinary care, Fero v. B. & St. L. R. R. Co., 22 N.Y. 209; fatal negligence would be such only as directly or by natural consequence conduced to the injury, Richmond v. Sacramento Valley R. R. Co., 18 Cal. 351; an action lies even where the plaintiff has been somewhat negligent, if reasonable care by the defendant would have prevented it, Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 156; the question of negligence is generally for the jury, D. & M. R. R. Co. v. Van Steinburg, 17 Mich. 99; an employer must use reasonably safe machinery and keep it safe, Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; Lalor v. C.B. & Q. R. R. Co., id., 401.

White & Haight for defendant in error. An injury resulting merely from the failure to use the safest known machinery does not entitle the injured person to damages, Dyman v. Leach, 40 E.L. & E., 491; Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20; Davis v. D. & M. R. R. Co., 20 Mich. 105; Coughtry v. Globe Woolen Co., 56 N.Y. 124; Ft. Wayne, Jackson & Saginaw R. R. Co. v. Gildersleeve, 33 Mich. 133; Pittsburg, Ft. Wayne & C. Rw. Co. v. Devinney, 17 Ohio St. 197; Moseley v. Chamberlain, 18 Wis. 700; an employee who knows or has full opportunity to know the nature of his employment, assumes all risks that arise from it without any fraud or concealment by the employer, Camp. Point Mfg. Co. v. Ballou, 71 Ill. 417.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

This was an action brought to recover damages for injuries received while working in the saw mill of defendant.

The evidence on the part of the plaintiff went to show that he had been working in and about the mill some fourteen days; that he was placed near the gang and had to carry slabs from the gang and place them on rollers; that when injured he had taken hold of a heavy slab, too heavy for one man to carry, and was pulling it, walking backwards; that while so engaged he accidentally stepped on a piece of wet bark and slipped back against the cog-wheels near the slab run; that his pants were caught and his leg drawn into the cog-wheels and severely and permanently injured; that he had not been warned or cautioned about these cog-wheels, and had never noticed them until after he was hurt, but that he could have seen the cogs if he had stopped work to look for them. Evidence was also given to show that these cogs should have been covered in order to be safe; that such wheels are generally covered in mills in order to prevent persons getting injured, and that it is dangerous to run them without being covered. Evidence was also given of plaintiff's lack of experience and knowledge in such mills, and of the nature and extent of the injury received. No evidence was introduced on the part of the defendant.

The court instructed the jury that these cogs being open, uncovered and dangerous, and plaintiff, with a knowledge of such facts, having continued at work, he was thereby guilty of such contributory negligence as would prevent his right to recover, and instructed the jury to return a verdict in favor of the defendant.

It is very evident that the increased dangers to which persons are exposed in the use of machinery at the present day, have kept even pace with the progress made in the manufacture of new, improved and complicated varieties thereof, and the employer therefore who, in carrying on his business, uses such machinery, must take those precautionary measures which are usual and customary with careful, prudent men to protect his employees from all unnecessary dangers arising from the use thereof.

He is to use that degree of care which every prudent man is expected to employ and does employ under similar circumstances in carrying on the same kind of business. Cooley on Torts, 556-7, and cases cited; M.C.R.R. Co. v. Dolan, 32 Mich. 510.

The employer must also provide a suitable place in which the servant, exercising due care, can perform his duty without exposure to dangers that do not ordinarily come within the obvious scope of such employment as usually carried on. Coombs v. New Bedford Cordage Co., 102 Mass. 572: 3 Am. Rep. 506.

A party entering upon a particular employment assumes the risks and perils usual thereto. Where the machinery used is not defective, either in its construction or from want of proper repair, and where the usual and customary means are adopted to guard against accidents, if wanting in either respect there is an increased risk, and if the servant is injured in consequence thereof, the master must be held responsible therefor.

If however, the servant, with full knowledge of the facts,...