Stein v. C. A. Goodyear Lumber Co. ( 1913 )

WiNsnow, C. J.

The appellant mates but one contention, namely, that the plaintiff was conclusively shown to be guilty of contributory negligence. The argument is that there was a safe way of removing the board from the slasher table without' stepping upon the table or the chains, namely, by stepping on the roller table and using the pike pole, and that no man of ordinary care and prudence would act upon the assumption that the chains had been repaired so that they would not start of themselves.

Really the latter proposition is the controlling proposition in the ease, because, if the jury were entitled to conclude that a man of ordinary care and prudence would assume that the defect had been repaired, then there would be no negligence in stepping on the chains, inasmuch as the only serious danger resulting from that' act was the danger of their starting without warning. After careful consideration of the evidence we are unable to say that the question should have been taken from the jury. It is true that several previous requests t'o repair the mechanism of the chains had been made and that no permanent repair had taken place, and it is also true that it now appears that it would have taken three weeks to make a complete and permanent repair by procuring and putting in place a new eccentric which when thrown would separate the face and friction wheels operating the slasher chains so that they could not engage when the face wheel was heated. This latter fact, however, was not known to the plaintiff. So far as he knew, the mechanism of the chains could be easily repaired so as to remedy the difficulty. His testimony is that on Thursday, when he last asked the foreman to make repairs, the foreman said he would go down and tend to it right away and that the foreman immediately went downstairs; that from that time up to the time of the injury on Saturday afternoon the chains never started of themselves, and that he believed that the defect had been fixed. It may be admitted that the question is a close one, but for that very reason we think it is properly a question for the jury. The conclusion of lack of ordinary care should be very clear in order to justify the court in taking it from the jury.

By the Court. — Judgment affirmed.