The McFarlan Carriage Company v. Potter
| Decision Date | 04 November 1898 |
| Docket Number | 2,546 |
| Citation | 51 N.E. 737,21 Ind.App. 692 |
| Parties | THE MCFARLAN CARRIAGE COMPANY v. POTTER |
| Court | Indiana Appellate Court |
From the Rush Circuit Court.
Transferred to Supreme Court.
Miller & Elam, McKee, Little & Frost and Smith, Cambern & Smith, for appellant.
Connor & McIntosh and Morris, Innis & Morgan, for appellee.
The appellee recovered judgment against the appellant for a personal injury. The appellant's demurrer to the complaint for want of sufficient facts was overruled.
It was shown in the complaint that the appellant, a private corporation, was engaged in manufacturing carriages; that the appellee, on the 12th of December, 1895, and for six months prior to that date, was an employe of the appellant in its shops; that on that day and for several days before, the appellee, by order of the appellant, was operating a rip saw in appellant's factory as its employe; that the table in which the saw was situated and the saw, at the time of the injury complained of, were defective and out of repair, as follows: that the table should have been so situated that the top thereof would be level, but the floor on which it stood had given way and sunk down, causing the top of the table to stand in a slanting position; that the slot irons upon the table should have been even with the top of the table, so that the top of the table would have a smooth and even surface, but the slot irons had become raised as much as one-fourth of an inch above the top of the table; that the saw should have stood perpendicular, but its top stood one-fourth of an inch from a perpendicular line; that said defects in the saw and table had existed for several days and the appellant had full knowledge of said defects; that by reason of said defects, the hazards of operating the saw were greatly increased; that on said day, while the appellee was operating the saw, by the orders of the appellant, as its employe, the piece of timber that he was then cutting with the saw was, by reason of said defects in the saw and table, caught by the saw in such manner as to quickly turn said piece of timber, and the piece of timber being thus unexpectedly and quickly turned, the appellee's hand was thereby thrown against the saw whereby his hand was cut and mangled by the saw to such extent that the hand and the use thereof were entirely and forever destroyed, and he had suffered and still suffered great pain from the injury. It was further alleged, that the appellant, from time to time before the appellee received said injury, promised him that it would cause the saw and table to be repaired; that appellee had not been operating the saw for several days prior to the happening of said injury; that on the morning of said day the appellant promised the appellee that it would repair said saw and table as soon as the job of work that the appellee was then working on was completed; that the appellee, relying upon said promise, by order of the appellant, commenced to operate said saw, and was injured within two hours thereafter and before said job of work was completed; that the appellee, relying upon said promises to repair the saw and table, and at the request of the appellant, continued to operate the same until he received said injury, believing from day to day that the appellant, in pursuance of its promise, would repair said defects in the saw and table; that at the time he received said injury he was operating the saw with due care, and was free from any fault or negligence on his part; that said injury was occasioned wholly by said defects in said saw and table and the negligence of the appellant; that by reason of said injuries, the appellee was damaged in the sum of, etc.; wherefore, etc.
Upon the question as to the responsibility of a master for injury suffered by his servant while continuing the service under a promise of the master to repair a hazardous defect, there has been some want of uniformity in the decisions, and especially in the announced reasons upon which adjudications have proceeded. The reciprocal duties and rights of master and servant arise out of their contractual relation. It is the master's duty to exercise reasonable care and diligence to provide and maintain a safe place and safe appliances for the use of the servant in the performance of his duties under the employment, and the master's failure in this regard is treated as negligence. The servant is presumed to contract with reference to the risks ordinarily incident to the particular employment, and he is regarded as having assumed all such ordinary risks. He is also regarded as assuming all risks of which he has knowledge, if with such knowledge he voluntarily continues in the service without any promise of the master to remedy the defects by which they are occasioned. But if upon the servant's complaint or objection, the master promises to repair the defect, and requests the servant to continue to use the defective appliance, and the servant complies with the request in reliance upon the promise, he cannot be regarded as assuming the risk of such defect.
The servant is bound to exercise ordinary care for his own safety, and he cannot recover for an injury suffered through the master's fault if the servant's own negligence contributed thereto proximately. It is sometimes said in the opinions of courts, that when the master so promises he assumes the risk. He does not insure the safety of the servant. It is the master's work that is being done with his appliances, and if he will have it done with dangerous appliances, and to that end and to induce the protesting servant to go on, the master requests the servant to proceed, and promises that he will repair, and the servant consents and obeys in reliance upon the promise, and is injured through such defect, there is a breach of duty on the part of the master which may be, as it is, classed as negligence. The servant is bound to exercise ordinary care, and if the danger from the defect which the master has promised to repair is so obvious and imminent that negligence can be fairly imputed to the servant for knowingly exposing himself to it, the risk being one which an ordinarily prudent person would not willingly encounter under the circumstances, the master cannot be held liable for injury resulting to the servant from such defect. The servant may recover when his injury has been occasioned without his negligence from a risk which he had not assumed. Where the servant calls the attention of the master to a defect which occasions an extraordinary risk, and thereupon the master promises to repair and requests the servant to continue in the services and the servant complies with the request relying upon such promise, he may recover for an injury suffered through such defect without his contributory negligence.
It has sometimes been decided in effect that he cannot recover for an injury suffered in the use of such defective appliance after the lapse of a reasonable time for the performance of the promise to repair. Whether this rule should be placed upon the ground that the servant in the continued service after such period assumes the risk, or upon the ground of his contributory negligence, perhaps need not be determined for the decision of the question as to the sufficiency of the complaint before us, though where the servant is using a defective appliance with the knowledge of its defect and the risk thereof, and it cannot be said that he is still using it under the master's direction with reliance or reasonable grounds for reliance on the promise of the master to repair, the authorities would seem to lead to the conclusion that he should be considered as having assumed the risk, as in the case of so serving without any promise of the master to repair. In Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612, the court by Mr. Justice Harlan adopts the statement of Shearm. & Redf. Neg. (section 96), that "there can be no doubt that, when a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." In the same case is quoted also the following statement of Mr. Cooley in his work on Torts: In the fifth edition of Shearm. & Redf. Neg. (published this year), section 215, it is said: In Romona, etc., Co. v. Phillips, 11 Ind.App. 118, 128, 39 N.E. 96, it was said, that if under all the circumstances ...
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