Wexler v. Salisbury

• Decision Date: 15 January 1904
• Docket Number: 13,713 - (122)
• Citation: 98 N.W. 95,91 Minn. 308
• Parties: MAX WEXLER v. FREDERICK R. SALISBURY and Another
• Court: Minnesota Supreme Court

98 N.W. 95

91 Minn. 308

MAX WEXLER v. FREDERICK R. SALISBURY and Another

Nos. 13,713 - (122)

Supreme Court of Minnesota

January 15, 1904

Action in the district court for Hennepin county to recover $15,000 for personal injuries. The case was tried before Harrison J., who, upon the conclusion of the testimony, directed a verdict in favor of defendants. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.

SYLLABUS

Assumption of Risk.

An employee engaged in a hazardous service, whose peculiar risks are known and appreciated by him, if he continues therein without objection or promise of protection from his employer assumes such hazards, and cannot recover for an injury caused by reason thereof.

Evidence.

Evidence considered, and held that it conclusively appears that the dangers from hammering iron bed rails in a factory by plaintiff, which caused particles to fly therefrom and strike his face, were known to him; and, having continued, with full knowledge of such dangers, to work for his employer without objection or a promise to furnish any further means for his protection, he assumed such risks, and is remediless.

Simon Meyers, for appellant.

Cohen, Atwater & Shaw, for respondents.

OPINION

LOVELY, J.

Action to recover damages for personal injuries suffered by plaintiff while in defendants' employ. At the close of the testimony the court, on defendants' motion, directed a verdict in their favor. Upon a settled case there was a motion for a new trial, which was denied. From this order plaintiff appeals.

The defendants were manufacturers of iron beds. Plaintiff was employed as a factotum in their establishment under the direction of the foreman. He was first set to work in the shipping room of the factory, and several days thereafter was directed to chip rails, which required him to pound on the same with a hammer to remove ragged edges and pieces of iron, which adhered thereto. Under his claim, he was not furnished proper protectors for his eyes, which were in use for that purpose. In performing his duties an infinitesimal piece of iron flew from the portion of the bed rail which he was striking, and entered one of his eyes.

There are several assignments of error based upon the claim that the court erred in orders regarding testimony with reference to the issues upon the furnishing of glasses or goggles for the plaintiff's eyes, which were claimed to be usual in such service; but, under our view of the necessary disposition of this case, we do not consider the rulings of the court material or important in this respect, for, upon the whole evidence, we are required to adopt the conclusion that the dangers of the situation were known to the plaintiff, and assumed by him.

A careful examination of the evidence justifies the following summary: The plaintiff was first employed to do general work, including whatever was required by the foreman and worked for a short time in the packing room of the defendants' factory. He was then transferred to an occupation that had to be performed in the final preparation of the iron bed rails, and continued therein for parts of three days, amounting in time altogether to seven hours of that service. The business he was engaged in caused pieces from the rails continuously to fly off in large numbers, and the work could not be done without this result, which was obvious and...