Rothenberger v. Northwestern Consolidated Milling Co.

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 fact, not of law, and consequently for the jury, at least if not entirely free from doubt.

*464There can he no question that, when a master has expressly promised to repair or remedy a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as would be reasonably allowed for its performance, or within any period which would not preclude all reasonable expectation that the promise might be kept. Hough v. Railway Co., 100 U. S. 213; 1 Shear. & R. Neg. § 215, and cases cited. It is clear from the evidence that plaintiff referred to the danger apprehended by himself when he complained of the exposed parts of the gearing, and requested that they should be covered. So far as we are informed by the record, no other workman or person was liable to an injury from this defect. He had been put at work sweeping and dusting about the machines, and this work frequently brought him in close contact with the machinery about which the conversation was had. The millwright or foreman to whom the complaint was made, if made at all, must have understood that plaintiff had his own welfare and safety in mind, and not that of other people. In this respect the case is vastly different from that of Lewis v. New York & N. E. R. Co., 153 Mass. 73, (26 N. E. 431,) relied upon by counsel. The testimony in that case compelled the court to believe that plaintiff, Lewis, acted in the interest of the defendant corporation, and not with reference to his own safety, when he notified the superintendent of the rotten condition of the flooring of the bridge pier, which pier was open to, and liable to be visited by, strangers. Certainly, in the case at bar, it was for the jury to determine from the evidence whether the plaintiff made complaint in his own behalf, and for his own protection; and the conclusion is almost irresistible that he did, and that the millwright must have so understood it. And from the circumstances under which the complaint was made, and the conversation which ensued between plaintiff and the millwright, it was for the jury to say whether the former remained at work because of the alleged promise to box thé gearing, — was induced to stay because it was stated that the defect should be remedied. It could fairly be inferred from what was said and done that he was induced to remain because of the promise.

The plaintiff testified that the promise was made a week or ten days prior to the accident. He also admitted that there had been *465plenty of time within which the boxes or coverings could have been made, and put in place, before he’ was injured. In fact, he conceded that the work could have been done in two days, with all of the millwright force available for the purpose. But we do not think that it could have been expected that all of the millwrights in defendant’s employ should be put at this work immediately upon the making of the promise, or that all other work of that character about the mill, which was a very large one, should have been promptly suspended, that the gearing might be covered at once. The question of whether the injury had been received within a reasonable period of time after the promise was said to have been made, or whether it had been suffered within a period which would not preclude all reasonable expectation that the promise might be kept, was clearly submitted to the jury; and obviously the testimony on this was such that we would not be justified in saying, as a matter of law, that a reasonable time had elapsed and expired, and that, therefore, plaintiff had waived his objection, and again assumed the risk. See Lyberg v. Northern Pacific R. Co., 39 Minn. 15, (38 N. W. 632.) Order affirmed.

(Opinion published 59 N. W. 531.)