GLENMONT LUMBER CO. v. ROY, 126 F. 524

SANBORN, Circuit Judge'. The plaintiff below, Theodore Roy, brought an action against the Glenmont Dumber Company, a corporation, for alleged negligence which he averred caused him to fall upon a log carriage in the defendant’s sawmill, and to lose a part of his hand against the saw. There was a verdict and judgment for the plaintiff, and the alleged error in the trial is that the court below refused to instruct the jury to return a verdict for the defendant.

The acts of negligence upon which the plaintiff relied when the evidence closed were a failure to properly box the saw, a failure to erect and maintain a square post near the lower end of the bumper, the fact that the bumper was shaky and too narrow at the top, and the fact that the cant hook which the plaintiff used was worn, and the hook was loose in its socket. The material facts disclosed by the evidence were not in dispute, and they were these: The plaintiff was a young man, 20 years of age, when, on October 13, 1900, he was injured. He had been working around the sawmill all the preceding summer.

The logs were drawn into the mill by a chain, and then thrown by machinery to the right and left, where they rolled down log decks in the form of inclined planes to carriages, on which they were borne to the band saws and cut into- lumber. The log deck on which this accident happened was about 20 feet long and 12 feet wide. With the exception of a small pit near the rear end of it, it was planked over, and there were two skids of railroad iron 8 inches high upon it, on which the logs rolled down to the carriage.

Across the forward end of this deck was a bumper constructed to prevent the rolling logs from striking the sawyer, who stood below, opposite the saw, and near the forward end of the log deck. The saw was boxed, with the exception of a space of sufficient size to permit the largest logs sawed in that mill to pass through the boxes and be turned into lumber. The bumper was constructed of two timbers — one 12 by 12, which was 12 feet long, and the other 12 by 6, which was from 6 to 10 feet long. The latter was laid on the former, so that its face was 18 inches above the deck.

This face, originally 6 inches wide, had become worn by use until it was 5 x/¿ inches in width. These timbers were secured by bolts, which either passed through them and through the log deck below, or through the upper timber and into the lower one, where they were fastened in place by nuts. The frequent blows of the rolling logs upon the timbers had made the bolts wabbly and the bumper shaky. There was no iron or other post near the lower end of the bumper for the workman to steady himself with, although posts of this character were maintained in similar positions in some other sawmills.

The cant hook was loose in its socket, had no prongs at the foot of the handle, such as projected from some such tools, and the point of the hook was dull and about an inch long, while those of some other-hooks were two inches in length. Until four or five days before the accident Roy had been working on the mill pond, driving logs up to the chain with a pick pole. The foreman then assigned him to tend the chain. He told the foreman that he had a job that he could do pretty well, and that he did not'see why he changed him.

But the foreman directed him to proceed to take charge of the logs as they were drawn up by the chain. His duties were to stop the logs at the proper place as they came into the mill, and to throw them to the right and to the left by means of levers which actuated machinery which accomplished this result. Sometimes as the logs rolled down the deck their forward ends would strike against the bumper, and they would stick. It was then the plaintiff’s duty to loosen and roll them down by the use of the cant hook.

This result could be accomplished either by walking out on the bumper and using the cant hook on the forward end of a log, or by going to its rear end and using the cant hook there.

After Roy had been at work in this position four or five days, and after he had repeatedly walked out upon the bumper and used the cant hook to roll logs down the deck every day of his employment as a tender of the chain, four logs stuck; he walked out upon the bumper, took hold of one of them with the cant hook, lifted, the hook slipped, he fell forward onto the carriage below, and one of his hands was borne against the saw and injured before it could be extricated. ' The condition of the saw and of the boxing about it, and the absence of any post near the lower end of the bumper, if defects, were open, visible, and obvious ones.

The following testimony of one of the plaintiff’s witnesses — the workman who had preceded him in the discharge of the duty of tending the chain — yvas uncontradicted: “Q. Working on the log deck, you can see your work as plainly as you can see this table? A. Yes, sir. Q. You can see that log deck as plainly as you can see anything? A. Yes, sir. Q. And you could see these timbers that make up the bumper just as plainly as you can see either of these tables in the courtroom? A. Yes, sir. Q. It is all in plain, open sight? A. Yes, sir. Q.

You could see it just that way — that one stick of timber was put on top of the other — could you not? A. Yes, sir. Q. But you walked on it, and you walked there freely, whether it was loose or whether it was tight? A. Certainly. Q. You couldn’t walk on there without knowing whether it was loose or whether it was tight, could you? A. No, sir. Q. A man couldn’t walk on there more than once without knowing just what condition it was in, could he? A. No, sir. Q. And you worked there for a long time, you say? A. Yes, sir. * * * Q.

There is nothing about a cant hook, so far as the manner in which it is put up and made, but that you can see how it is made, and how it works, by looking at it, taking it up, and handling it? A. No, sir. Q. If a cant hook is loose, you will know it just as soon as you take it up in your hand, will you not? A. Why, yes; certainly. Q. You couldn’t take it up and handle it without knowing it is loose? A. No, sir. Q.

So that, if you took up the cant hook that you have testified to was in the mill— the one with the heavy, oak handle — if that was loose, the moment you took it up and undertook to handle it you could see it was loose? A. Yes, sir. Q. You could see that at once? A. Yes, sir. Q. You couldn’t handle it without knowing that it was loose? A. No, sir. Q. You could see that in an instant? A. Yes, sir. Q. State whether or not there was any projection on the iron ring at the end of the cant hook? A. Yes, sir. Q. You couldn’t handle it very well without seeing these projections? A. No, sir. Q.

You couldn’t handle it very well without knowing there were no projections on there, could you? A. No, sir. Q. A cant hook is a plain, ordinary tool used in and about the lumber business? A. Yes, sir. Q. Used for the moving of logs? A.

Yes, sir.” The plaintiff testified that he noticed that the timbers constituting the bumper were a little loose and shaky while he was working there; that the first work he ever did lumbering was rolling logs into a lake with a cant hook; that at that time he used such a tool two days; that the first day he worked with a cant hook he knew that if the hook was fast in the log it would not slip, and if it was not it would slip; that, the moment he took up the cant hook which he was using when he was hurt, he saw that it was loose in the socket; that he used it frequently many times an hour each of the five days he was working in the place where he was injured before he was hurt; that he knew that if the cant hook did not catch in the log it would slip; that it had slipped several times before he was injured; that he did not realize the danger that was there — and as follows: “Q.

You don’t know what caused you to fall, do you? A. Yes, sir. Q. What was it? A. Just as I caught hold, the cant hook— If the cant hook had not slipped, I wouldn’t have fell. Q. You say the cant hook. State whether you were positive about that? A. Yes; just as I got hold of the log it slipped, and I went right over with it. Q. The cant hook slipped? A. Yes, sir. Q. Then the slipping of the cant hook caused you to be thrown over there? A.

Yes, sir.” Conceding, without considering or deciding the question, that there is some evidence in this case that the defendant failed to completely discharge its duty to exercise ordinary care to furnish for the plaintiff’s use a reasonably safe place and reasonably safe appliances, this case is ruled by these established principles of law: The master is not required to supply the best, newest, or safest appliances to secure the safety of his servants; nor is he bound to insure the safety of the place or of the appliances he furnishes.

His duty in this respect is discharged when he has exercised ordinary care to furnish a place and appliances reasonably safe and suitable for the use of his employés. Washington, etc., R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235; Patton v. Railway Co., 179 U. S. 658, 661, 21 Sup. Ct. 275, 45 L. Ed. 361. The factory act of Minnesota (Gen. St. 1894, § 2248), which requires employers to guard or fence dangerous machinery so far as possible, does not abolish the defense of assumption of risk. It does not deprive parties of their right to contract regarding the risks of their avocations.

A servant, by entering or continuing in the employment of a master without complaint, assumes the risks and dangers of the service which he knows and appreciates, and those which an ordinarily prudent person of his capacity and experience would have known and appreciated in his situation. Choctaw, Oklahoma & Gulf Ry. Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed.-; opinion filed Nov. 2, 1903.

An employé cannot be heard to say that he-did not appreciate or realize the dangers where the defects were obvious, and the dangers would have been known and appreciated by an ordinarily prudent person of his intelligence and experience in his situation. Choctaw, Oklahoma & Gulf Ry. Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed.-; opinion filed Nov. 2, 1903.

Among the risks and dangers which the servant may thus assume are those which arise from the failure of the master to fully discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work, and reasonably safe appliances to use.

Where the uncontradicted evidence discloses» the fact that the defects in the place or in the tools were obvious, and the dangers from them would have been apparent to an ordinarily prudent person of the intelligence and capacity of the servant, if placed in his situation, and the employé entered upon or continued in the service without complaint, the defense of assumption of risk is conclusively established, and the court should instruct the jury to return a verdict for the defendant.

Every defect of which the plaintiff complains — the condition of the saw, the absence of the post at the lower end of the bumper, and the looseness of the cant hook in its socket — was. obvious to a casual inspection, and was known to him within one hour after he entered upon the discharge of the duty of tending the chain. He was 20 years of age, and his testimony clearly discloses the fact that his ability, intelligence, and perception were not inferior to those of the ordinary young man of his age and experience.

A minor assumes the risks and dangers that he actually knows and appreciates, and those that are so apparent that one of his age, experience, and capacity would, in the exercise of ordinary care, know and appreciate them, to the same extent as does the adult. Bohn Mfg. Co. v. Erickson, 5 C. C. A. 341, 344, 55 Fed. 943, 946; Engine Works v. Randall, 100 Ind. 293, 298, 300, 50 Am. Rep. 798; Berger v. Ry. Co., 39 Minn. 78, 38 N. W. 814; Sullivan v. Mfg. Co., 113 Mass. 396; Fones v. Phillips, 39 Ark. 17, 38, 43 Am. Rep. 264.

The dangers from the defects which have been mentioned were so apparent that knowledge. and appreciation of them were unavoidable by a young man of 20 years, possessed of ordinary prudence and perception. He fell and received his injury because the point of his cant hook slipped when he was standing upon the inclined bumper, endeavoring to l:ft the log. He knew that the hook was loose in its socket — that its point was short, dull, and liable to slip — for he testified that it had slipped several times before while he was using it.

He knew that if it slipped there was danger that he would fall forward toward the carriage and toward the saw, and come within reach of its teeth. There was nothing hidden, recondite, uncertain, about the dangers from the defects of which he complains. They were so plain, open, apparent, that any young man 20 years of ‘age, of ordinary ability and prudence, who had used a cant hook 2 hours, to say nothing of 6 days, and who had worked about logs for months, could not have avoided a knowledge and an appreciation of them if he were placed in the situation of the plaintiff.

Nevertheless he continued in the service, and refrained from notifying his master of the defects he now mentions, when his opportunity to know them and his knowledge of them were at least equal to those of his master .or of his inspectors, and his acquaintance with them far more intimate and familiar.

The conclusion is unavoidable that, by entering upon and continuing in his service for five days in the presence of obvious defects, which he knew, and of plain, apparent dangers, which an ordinarily prudent person of his experience and intelligence in his situation could not have failed to appreciate, he assumed the risk of the injury which resulted from them, so that no cause of action ever arose in his favor against the defendant; and the court should have instructed the jury to that effect.

This application of the rules of law which govern this case is sustained and illustrated by the following cases, in which courts have held that it was the duty of the trial court to direct a verdict for the employer: Higgins Carpet Co. v. O’Keefe, 51 U. S. App. 71, 81, 79 Fed. 900, 902, 25 C. C. A. 220, 222, in which a boy 15 years of age, who had been at work in a room with a picking machine, was assigned to feed it, and permitted his hands to slip into the exposed cogs, which the factory act of New York required the master to keep covered; Buckley v. Mfg. Co., 113 N. Y. 540, 21 N.

E. 717, wherein a boy 12 years old slipped and threw his fingers into exposed cogs; Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798, in which a boy 19 years of age permitted his hands to engage with mashing cogs; Berger v. Ry. Co., 39 Minn. 78, 38 N. W. 814, wherein a boy, in feeding rollers in a boiler-making shop, permitted his hands to slip between them; Cudahy Packing Co. v. Marcan, 45 C. C. A. 515, 517, 106 Fed. 645, 647, 54 L. R. A. 258, in which a block on which a boy 17 years of age was standing slipped upon the greasy floor, and caused him to throw his hand into a hasher; Glover v.

Bolt Co., 153 Mo. 327, 55 S. W. 88, in which a boy engaged in pulling iron from a pile fell, and threw his fingers between closing shears; Sullivan v. Simplex Electrical Co., 178 Mass. 35, 39, 59 N. E. 645, in which the hands of a boy 19 years of age, who was feeding rubber between rollers, were caught and injured by them. A more exhaustive discussion of the rules of law on which this decision is based, a citation, review, and analysis of the authorities which sustain them, and which compel the ultimate conclusion in this case, may be found in the opinion of this court, filed herewith, in St. Louis Cordage Co. v.

Miller, 126 Fed. 495, a case which was argued at the same term, and which has been considered at the same time with the case in hand. The judgment below must be reversed, and the case remanded for a new trial, and it is so ordered. 3. Assumption of risk incident to employment, see note to Railroad Co. v. Hennessey, 38 C. C. A. 314.