Taylor v. Withington & Cooley Manufacturing Co. , 136 Mich. 652 ( 1904 )

Grant, J.

{after stating the facts). Did the plaintiff assume the risk? The following facts are conceded: Defendant furnished a good, sound belt. The court so instructed the jury. It had furnished a competent repairer, Mr. Kitcher. If it was his duty to inspect the belts, he was entirely competent for that purpose. The business was dangerous. Belts were constantly breaking, but in the many years of the defendant’s business but one other person had been injured. To lessen or avoid the danger from breaking belts, planks were put up to prevent their flying and hitting other employés working near. The principal danger arose from the breaking of the belts.

The plaintiff was properly instructed how to do the work. He was an experienced workman. The condition of the belt was clearly as apparent to him as to any one. Belts wore more or less, and did not wear evenly. The strength of the belt did not always depend upon its thickness, but to a considerable extent upon the quality of the leather. All the witnesses, including the plaintiff, testified that, if the belt was thin in places, they knew it at once, because, as the fork was held'upon the rapidly revolving belt, it would jump as it struck the thick and thin places. All the witnesses, including plaintiff, state that, when they saw a belt was defective, it was their custom to call the attention of the repairer to it. It was also a duty which the operators owed to themselves and to their employer. When cleaning the emery from the belt, every inch of it was under the eye and inspection of the operator. If it was thin, he would know it before any one else. Plaintiff .testified that he could then determine whether the belt was too thin. Plaintiff’s witness Converse, the oldest operator in the shop, testified that there was no one who could see more of the condition of the belt than could the operator when he cleaned it with his scythe. It was both known and understood that the belts wore thin from use. All admit that when, in their judgment, a belt became unfit for use', it was their custom to throw it aside and get a new one from the foreman. It was their duty to do so. Plaintiff made no complaint, either .to Kitcher or to the foreman, that the belt was unfit for use.

I. think this is clearly one of those cases where the workman assumed the risk. It is not reasonable, in my opinion, to hold that the defendant was responsible for the consequence of breaking belts, when the contract of employment was made with the knowledge and understanding that they were apt to, and did often, break. Before an employé could fasten liability upon the defendant, it was his duty to call the attention of the representative of the defendant to the defect. If then he was not supplied with a new belt, or the old one could not be, and was not, repaired, then the defendant would undoubtedly be liable.

Judgment reversed,, and new trial ordered.

The other Justices concurred.