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Duty to stop automobile when horse frightened.— If the defendant knew or could bave known by the xercise or ordinary care that the automobile bad so excited the horse as to render him dangerous and unpanageable, it was his duty to stop and take such steps for plaintiff's
safety as prudence might suggest. Damages-Verdict. -A verdict for $1020 for a permanent and serious loss of vision in one of the plainif's eyes, as the result of a severe cut and
bruise received at the time of the accident, was not excessive.
RUPP v. BURGESS.
SUPREME COURT, NEW JERSEY, NOVEMBER, 1903. The first count plainly discloses no cause of action. It is based upon the assumption that the owner ind occupant of premises abutting upon a public street is under a legal duty to keep in repair the sidewalk in front of his property. But no such obligation rests upon him, unless by virtue of the requirements of a city or municipal ordinance (Dillon on Mun. Corp., Sec. 1012; Weller v. McCormick, 47 N. J. Law, 400; ! Atl., 516), and the declaration fails to allege the existence of any such requirement. And even when the duty of repairing sidewalks is imposed upon the abutungwner by statute or ordinance, the failure to perform that duty does not render the owner responsible to individuals for injuries received by them, resulting from defects in the sidewalk, due to want of repair. The only liability which rests upon the property owner for the nonperfo mance of such a duty is the penalty provided by the statute of ordinance. Fielders v. North Jersey Street R’y Co., 68 N. J. Law, 352 ; 53 Atl., 404; 13 Am. Neg. Rep., 156; 54 Atl., 822, and cases cited.
The second count, however, although loosely drawn, we think may stand. It states, substantially, that a drain or trench which was an appurtenant to the premises of the defendant, and used for the purpose of carrying the surface water therefrom, extended across the sidewalk to the curb line; that the defendant negligently permitted the coveriog of this drain or trench to become so dilapidated, broken and out of repair, that ihe plaintiff, while passing along the street, without any negligence on her part, stumbled over the broken covering and fell into the drain, thereby receiving serious injury. The rule is settled that when an abutting owner, for his private ends, places or maintains in a public highway anything which, if neglected, will render the way unsafe for travel, he is bound to exercise due care to prevent its becoming dangerous, and that his failure to do so will render him liable for injuries received by a person passing along the highway, resulting from that neglect. The cases upon this subject will be found collated in the American & English Encyclopedia of Law (2d ed.), vol. 15, p. 419, notes 2 and 3.
CORBETT v. ST. VINCENT'S INDUSTRIAL SCHOOL OF UTICA.
COURT OF APPEALS, NEW YORK, DECEMBER, 1903.
Charitable institution-Convict injured by reason of negligence of managers. An incorporated charitable institution organized to conduct an asylum and industrial school for boys, to
which magistrates are authorized to send convicted minors, is as to such inmates a governmental agency, and is not liable for a personal injury to one of such inmates, resulting from the negligence of the manage s in putting him to work at a machine with which he was unfamiliar and without proper instruction and warning.
O'BRIEN, 7.—The plaintiff, a boy under sixteen years of age, brought this action in the name of his guardian ad litem against this defendant, to recover damages for personal injury sustained by him while confined as a prisoner by the defendant, having been required to do some work in a laundry in which a machine called a "steam mangle" was ia operation in doing the work. The plaintiff was assigned to duty in operating the mangle, assisted by another boy. He had never worked upon such a machine before, and it is claimed that he received no instructions from the managers of the defendant institution in regard to the management of the mangle, and while operating it on September 14, 1900, his right hand was caught between the cylinders and severely burned, mutilated and crushed, and thus he became permanently disabled. The case was submitted to the jury and a verdict rendered for the plaintiff, upon which judgment was entered, but was reversed at the Appellate Division. *
It is quite possible that if this case is governed by the general law of negligence, as applied to the relation of master and servant, there was sufficient evidence to justify the submission of the case to the jury. We do not, however, consider it necessary to pass upon that question, since it has been fully
disposed of in the court below, and we think that, inasmuch as the defendant in receiving and taking charge of the plaintiff
, was exercising functions which in a large sense belonged to the State, it cannot be held liable for accidents of this character. This view is well supported by abundant authority, as will be seen by the adjudged cases, which it is only necessary to cite without comment (Lewis v. State, 96 N. Y., 71; Hughes v. County, of Monroe, 147 N. Y., 49; McDonald v. Mass. General Hospital, 120 Mass., 432; Benton v. Trustees of City Hospital of Boston, 140 Mass., 13; People ex rel. N. Y. Inst. for Blind v. Fitch, 154 N. Y., 14; People ex rel. Mi. Magadalen School v. Dickson, 57 Hun, 312; Collins v. N. Y. Post Graduate Medical School, 59 App: Div., 63; Joel v. Woman's Hospital, 89 Hun, 73; Springfield Fire & M. Ins. Co. v. Village of Keesville, 148 N. Y., 46.)
BALDWIN v. URNER.
SUPREME COURT, PENNSYLVANIA, JULY, 1903. Master and servant-Automatic opening elevator doors forming part of floor opening and catching
employee between them and a post.
Where it appeared that a minor eighteen years of age, employed in defendant's factory, was injured by his leg being caught between a post a d one of two doors that when closed
formed part of the floor, and that opered
automatically when the freight elevator approached them from below, and the employee had Crossed the closed dcors a sh rt time before to get some tags from a box in a narrow passageway between the automatic door and the wall
, and that was obstructed by other boxes placed there by other employees, but which boxes could have been readily removed so as to give
access to the tag box without crossing the
automatic doors, a reasonably safe place to work had been provided for the employee, who unnecessarily selected a dangerous route and assumed the risk that was as obvious to him as to his employer.
The immediate cause of the injury was the operation of the treight elevator which was used to raise raw material from the ground to the third floor where the machines were placed, and to lower from that floor the finished product. It was properly constructed and operated, and could not answer its purpose without an exit from below in the floor; automatically, when it approached the floor, the doors which at other times formed part of the floor raised up and closed down again when the elevator descended. Plaintiff in his testimony says: I got my tags, and was returning and got about the middle of the d ors, wben they raised under my feet.
The doors slid me up against the post on that side." Here was machinery operating exactly as it was intended to operate, and was reasonably necessary to the successful carrying on of the factory. The floor was entirely safe, except in that particular spot,--that is, on the doors where the plaintift was standing-and even there, except for a very few minutes when the elevator was ascending to that floor. Outside of the doors there was a safe passageway at all times not interfered with by the elevator and doors. Taking into view the rature of the work being carried on, the necessity of an elevaror, that plaintiff was employed on the third floor, we think the employers furnished plaintiff wiih a reasonably safe place to work. There is no factory operated by machinery and hands in which more or less risk is not run by the employees working in such factory. The risk is only minimized by the very utmost care; it is not abolished. But the employer is not held up to the very highest standard of care-only to reasonable care, in view of the circumstances. The highest standard of care here would have been to get rid of the elevator altogether, and carry the material up and down stairs.
As to the second complaint, that appellant in his work was subject to wholly unnecessary danger, it appears from the evidence that in carrying on his work, appellant had to go across the floor from his machine to yarn and tag boxes, and that when injured he was returning from the tag box across the elevator doors to the machine with the tags. Undoubtedly, there was more danger of stepping on the doors than on the floor outside. But appellant voluntarily stepped on the doors, because that way was at the time most couvenit nt to him. It is said the passageway at one side was obstructed by boxes; but the evidence is that that place for the boxes was not designated by the employer. They were put there by employees, and could easily have been removed, so as to leave the way open. No rule of law would impute ibis act of negligence by employees to their employer. He planned his place of work so as to leave an entirely safe passage. He planned the automatic doors so that there would be no dangerous opening at any time, except when the elevator made its trip to third floor. Everything was done that reasonable prudence would dictate to lessen danger. The undecessary danger was caused by the voluntary act of appellant in unnecessarily walking on the doors when there was an entirely safe way outside.
MCMILLEN V. NORTH STAR MINING COMPANY.
SUPREME COURT, WASHINGTON, SEPTEMBER, 1903. Master and servant-Miner-Explosion of charge that had missed fire-Duty of master to supervise.
It was the duty of a mining company that let a contract for driving a tunnel in its mine to keep itselt advised as the work progressed of the location of the different charges,
so that those subsequently employed by the company might be informed of the location of the unexploded charges.
Same--Risk from unexploded blast not assumed.-An employee engaged driving a tunnel in a mine does not as ume the risk of injury from an unexploded blast that was left by other employees without his knowledge, when he had not been warned and could not by the exercise of reasonable observation and care have discovered the hidden danger.
HADLEY, 7.-Respondent brought this suit against appellant to recover damages for injuries received while he was working in appellant's mine. A tunnel had already been driven for a distance of more than 200 feet by others who had worked under a contract with appellant, but who had quit the work. Respondent and another were employed by appellant to continue work in this tunnel. The employment was made by appellant's foreman, who directed where the work should be done. The tunnel had the appearance of having been well cleaned up by the former workmen, and the foreman did not warn the respondent or his fellow workman of any hidden danger. Neither respondent nor his associate had ever worked before in the tunnel, and neither had any knowledge of any concealed danger. Respondent was directed to work at the face of the tunnel, and his companion was ordered to work upon the “drift," a short distance from respondent. They began work in the afternoon and continued unul the morning of the second day following. Meanwhile respondent had exploded several blasts at the f ce of the tunnel, and on the morning above mentioned was engaged in “mucking out." A loose plank floor had been laid upon the bottom of the tunnel, near the face, in order that the broken material might be more easily shoveled. The face having been moved forward somewhat by the work of respondent, he was about preparing to move this floor nearer to the face. While engaged in cleaning and smoothing the bottom of the tunnel between the ends of the planks and the face, he was using his pick, and when he struck a place near the ends of the plank an explosion occurred, which resulted in the destruction of one of his eyes and in permanent injury to his hearing.
MUENCH v. HEINMANN,
SUPREME COURT, WISCONSIN, OCTOBER, 1903. This is an action to recover damages for personal injuries. In August, 1900, and for some time prior thereto, the defendants, as partners, were manufacturers of hats in the city of Milwaukee, and at the time of the accident occupied a four-story building, and had occupied the same for about two weeks. In this building there are two freight elevators, which were moved by hydraulic power, and in each of them the shifting cable passed over a sheave or pulley at the top of the shaft, which sheave or pulley was attached to a hanger, which hanger was attached by screws to planks forming ceiling of the shaft. The plaintiff was in the grocery business in Milwaukee, and also peddled milk from 5 A. M to noon each day, and had for some time sold milk to detendant's employees, and continued the practice after the defendants moved into the building aforesaid. He was accustomed to take his milk cans into the east freight elevator aforesaid and go up to the fourth floor in the elevator, operating the shift cable himself, and come down the same way after de livering his milk. The milk was for the employees' convenience and use, solely, but the forewoman upon
se fourth floor was accustomed to collect the money from the employees and hand it to the plaintiff, thus aving time. Plaintiff te-tifies that on August 3, 1900, he entered the building as usual to deliver milk, and nat he met Mr. Jenner, one of the defendant's firo, who saw him using the east elevator, and directed him a the future to take the west one, as that was the passenger elevator. This statement is absolutely denied y Jenner. On the morning of August 4, 1900, plaintiff entered the building with his milk cans as usual, ook the west elevator to the fourth floor, delivered his milk, and then took the elevator down again; and, rhen be was part way down the sheave over which the shifting cable ran ell, striking him and badly inuring him.
The main question in this case, however, is whether under the facts testified to by the plaintiff himself, ind found by the jury, there is any liability shown; and this depends upon the question whether, under hese facts, the plaintiff was a mere licensee, or one who was upon the premises by invitation, expressed or mplied. If he was a mere licensee, there can be no recovery, because a mere licensee takes the premises as he finds them, and the licensor owes him no duty, save to refrain from acts of active negligence rendering the premises dangerous (Cabill v. Layton, 57 Wis., 600, 16 N. W. I.) If, on the other hand, he was more than a mere licensee, and was on the premises by invitation, express or implied, the defendants owed him the duty of exercising ordinary care to keep the premises in safe condition for use by persons themselves exercising ordinary care (Gorr v. Mittlestaed, 96 Wis., 296; 21 N. W., 656.) Mere permission or license does not imply invitation. When that fact alone appears, the permitted person is a mere licensee; but when it is shown that the permitted person enters on the premises in the ordinary way to transact business with the licensor, or that the object of his visit is one in which there is mutuality of interest between licensor and licensee, but an invited person, to whom the duty of exercising ordinary care is owing (Hupfer v. Nat. D. Co., 114 Wis., 279; 90.V. W., 191.) In the present case it appears without dispute that the plaintiff went upon the premises for the transaction of private business of his own with the defendants' employees, in which the defendants themselves had no interest, and up to the time, at least, when the defendant Jenner, as alleged and found, directed him to use the west elevator, he was a mere licensee ; and the simple question presented is whether that direction constituted an invitation, either express or implied. We have been unable to see how it can be so construed. True, it was a permission, but a mere licensee bas permission, It substituted affirmative consent for mere sufferance, but simple consent is not invitation, express or implied. It was as if Jenner had said, “You are at liberty to use this elevator in transacting your own business with my employees.” How can this be construed as invitation, express or implied? There was still no mutualiiy of interest in the object of the plaintiff's visits, nor any express or implied request to continue them, but only affirmative permission in place of tacit sufferance. We are referred to the case of Ill. Cen. R’y Co. v. Hopkins, 200 11., 122; 13 Am. Neg. Rep., 15; 65 N. E., 656, as sustaining the idea that there was implied invitation in the present case. That case certainly carries the rule very far, and furnishes some ground for the contention made here; but the decision was placed upon the ground that mutuality of interest was shown, and hence that there was implied invitation, and we are unable to find any such element in the present case. The result is that, in any aspect of the evidence, the plaintiff was a mere licensee upon the premises; and, no active negligence being
shown, he cannot recover. We have found no other exceptions in the record which require discussion.
SOUTHERN INDIANA RAILWAY COMPANY v. HARRELL.
Employers' liability-Construction of statute-Vice principal—Safe place to work. In this case Jackson H. Harrell sued the above-named railway company for injuries received while in its employment. Harrell
was employed with others in the building of a pier for a railroad bridge, and to aid in its construction a derrick had been erected upon a platform a few feet north of a temporary track used to aid in the work. This derrick was so constructed that heavy stones supported by it tended to swing toward the track, this construction being intentional to facilitate its use. Harrell was working with a group of men of whom one Gratzer was foreman, and at the time of the accident which caused the injury was seated on a projecting bent. Just as a train which had been standing at the place of the men's employment was moving away, Gratzer signalled the engineer controlling the derrick to raise a stone which
was lying on the pier, and in the meantime three men, Courtney, Clemmons and Polland, were holding the stone away from the track by means of a rope so that it should not swing against the cars. After a time Clemmons and Polland let go of the rope to go about other duties, and Courtney, finding the stone too heavy for him to hold alone, also let go, so that the suspended stone caught on a running board of one of the passing cars and was made to swing against
had exclusive charge of the stone work, directing the men and working himself. * After stating the facts, Judge Gillett, who delivered the opinion of the court, continued as follows:
Assuming that Gratzer was negligent, as we have before done, it would follow that appellant might have been liable to a stranger, under
the rule of respondent
superior, had he been in appellee's place. But in appellee's case negligence could not be predicated on his injury if it was a result of one of the risks of the service, because as to those risks which the servant assumes there is no duty. One of the leading
duties of a master, except in instances when it can be said that the complaining servant has assumed the particular risk, is to use ordinary care to keep the place where such servant is employed in as safe a condition as the nature of the
employment fairly admits of. To make the above statement certain requires a consideration of the meaning of the word "place." If by this it is meant that the master, by himself or representative, must be always present to ward off every transient peril that may manace the servant in the particular spot or place that he may chance to occupy while engaged in the performance of his work, then it must be affirmed that the rule of law devolves u, on the master a duty that in many instances it would be wholly impracticable to discharge. A railroad company could scarcely employ vice principals
enough to make it sufficiently argus-eyed to guard its servants to that extent. Furthermore, it is to be observed that in some lines of business, like the operation of a railroad, many servants are employed whose respective duties a'e so correlated that in the very forwarding of the master's business they are protecting the lives and limbs of their coservants; and if some limitation be not put upon the word
place," as respects transient dangers in the conducting the detai such servants becomes, for some purposes, a vice principal, and the integri y of the coservant rule is
As was said in the decision of Butler v. Townsend, 126 N. Y 105, N. E., 1017: “A place, in its broad
sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer.'
In line with the above observations are the following expressions from the decision of Hermann v. Port Blakely Mill Co. (D. C.) 7: Fed. 853: “The word 'place,' in my judgment, means the premises where the work is being done, and does not comprehend the negligent acts of * * * fellow-servants, by reason of which the place is rendered unsafe or daogerous. The fact that the negligent act of a fellow-servant renders a place of work unsafe is no sure and safe test of the master's duty and liability in this respect, for it may well be said that any negligence which results in damage to some one makes a particular spot or place dangerous or unsafe. To so hold would virtually be making the master responsible for any negligence of a fellow-servant which renders a place of work unsafe or dangerous. It would be doing the very thing which it is the policy and object of the general rule not to do. It would create a liability which the master could not avoid by the exercise of any degree of foresight or care."
Granting that for some purposes the man Gratzer was a vice principal, we are unable to perceive that he was acting in that capacity at the time that he gave the alleged negligent order. The risk of injury from the negligence of a foreman is as much within the servant's assumption as is the risk that he may be injured by the act of any other coservant. (Cases cited.) The evidence in this case shows that Gratzer took part in the physical work of setting stone in the construction of the pier, and he was working as a servant when he gave the order looking to the setting of the stone which injured appellee.
To sum up the question as to the claim of a common-law liability: The appellant was not bound to have a representative present at every
moment to keep the place that appellee might chance to occupy safe, as against the possible negligence of a coemployee. The man Graizer was engaged at the time of his alleged negligence as a servant in forwarding the work. Appellee and Gratzer were coservants, and, as it is not alleged or proved that appellant did not exercise due care in the selection and retention of such foreman, it follows that appellant is not liable for his negligence in the particular instance.
DE GRAY V. MURRAY.
SUPREME COURT, New JersEY, JUNE, 1903. GUMMERE, Ch. 7.-This was an action to recover for injuries resulting to the plaintiff in error (the plaintiff below) from the bite of a dog, owned by the defendant in error, which attacked her while she was walking on the public street. At the close of the testimony the trial judge directed a verdict for the defendant, and the plaintift seeks to review the judgment entered upon that verdict.
It is the settled law that the owner of a dog will not be held responsible for injuries resulting to another person from its bite, unless it be shown that the dog had previously
bitten some one else, or was vicious, to the knowledge of the owner. Smith v. Donohue, 49 N. J. Law, 548, 10 Atl. Rep. 150, and cases cited. In the present case, although the dog had been kept on the defend int's premises for several years, and must have been well known in the neighborhood, the only evidence tending to show viciousoess on its part, prior to the time when the plaintiff was bitten by it, was that, on two or three occasions, it had “flown at" a policeman whose duty required him to daily pass by the premises of the defendant, and that, on another occasion, it had "sprung at" a boy who was passing by along the street, and made two little holes, or spots, upon his leg. It is admitted that the policeman was never bitten, and it is left in uncertainty whether the marks on the boy's leg were made by the teeth
of the dog or by its claws. Assuming that this evidence, meager as it is, was sufficient to make the character of the dog a jury question, it was necessary, as has already been stated, in order to fix upon the defendant liability for the plaintiff's injury, to show that he had knowledge of his dog's vicious propensity. But the case utterly fails in this regard. So far as the occurrence in which the boy figured is concerned, the defendant heard from his wife that she had been told by the boy's mother that the dog had jumped upon her son, but had merely scratched his leg. The experience of the policeman he never heard of at all.
The right of a man to keep a vicious dog for the protection of his home and property is conceded in the case of Roehers v. Remhoff
, 55 N. J. Law, 479, 36 Atl. Rep. 86. He is, of course, bound to exercise a decree of care, commensurate with the danger to others which will follow the dog's escape from his control, to so secure it that it will not injure anyone who does not unlawfully provoke or intermeddle with it
. Worthen v. Love, 60 Vt. 285, 1 Am. Neg. Cas. 249. 14 Atl. Rep. 461. But if the owner does use such care, and the dog nevertheless escapes and inflicts injury, he is not liable. In the case now under consideration the undisputed evidence makes it clear that the defendant fully discharged the duty of using due care to prevent the escape of bis dog from his premises, and that the plaintiff's injury was not due to any neglect in that regard upon his part. She was bitten in the early morning, b-tween half-past six and seven o'clock. On the preceding evening the defendant shut the dog in his carpenter shop (which adjoined his dwelling). and locked him in. During the night the dog gnawed away the wood work from around the lock of the door to such an extent that the lock became detached, thus permitting the door to open and the dog to escape. That a reasonably prudent man would not have anticipated any such occurrence must be admitted.
ANN ARBOR R. CO. V. KINZ.
SUPREME COURT, Ohio, APRIL, 1903. Dangerous premises-Injury to licensee--Boy in vacant lot injured by caving of bank. 1.-The owner of an uninclosed tract of land within a city, which has been graded to a level, leaving a bank on one side of the premises, to which premises adults are not invited, but suffered to resort for the purpose of playing baseball, which amusement attracts to the ground and along to the bank young boys to witness the games, is not liable for injury to one of such boys, cau:ed by the caving or falling of the top or the embankment, where its condition does not, to the knowledge of such owner, indicate a reasonable probability of such result.
What are these fac's? The premises on which the boy sustained the injury belonged to the railroad company, and are situate in the north part of the city of Toledo, between Bush and Magnolia streets, lying not far from, if not adjoining, the righi of way of the defendant company, and extended to the Wheeling Lake Erie Railroad, a distance of about 200 feet. This tract of land was an open, unfenced common, not near any depot of the company, and none of its buildings were upon it. Part of this ground was higher
han the remainder, and on it were some low places, which the company desired to fill and to grade the ract to a more even surface. In the summer of 1896 the company let a contract for the work contemplated, ind it was entered upon some time in June of that year. The earth to make the fills was taken from the righ ground of the tract by means of a steam shovel; and after the work of excavation had proceeded well owards completion,
on account of a controversy between the company and the contractor the work was uspended, which was some time in August of the same year. The making of the excavation left a bank, nostly of clay, about ten feet high, and which was situated at least 100 feet from the tracts of the Ann Arbor Railroad. The steam shovel which removed the earth from the bank left the surface uneven. From ts base the ground sloped gradually toward the railroad. The lower portion of the ten-foot embankment had some slope. outward, and the upper portion was nearly perpendicular, and at the time of the injury the top of the bank at some places projected slightly. The low places in the tract of land had been filled, and the ground, except the bank and its base, graded so that it was nearly level, and it remained in that condition from the time the contractor quit work in the summer of 1896 until after the injury in August, 1897: No other or further work was done on the commons or at the bank during that time, and n change had occurred in the shape or condition of the bank, except as made by the weather and the acts of the injured boy and his companions.
After the work ceased in 1896, young men and others who desired to play baseball assembled and played ball on this common, and this habit was renewed in the summer of 1897. The plaintiff, a boy about eleven years of age, and others both older and younger than he, were attracted to the common by the games of baseball, and, if they did not engage in that game themselves, were frequently onlookers while others played, and at such times occupied the sloping base of the bank. On the day of the injury the plaintiff and his companions were witnessing the game, and, as on preceding days, whiled away a part of their time in digging into the clay bank, some with their fingers, and others used sticks, the object being to get clay with which to make balls to throw at each other. This amusement was in progress at the time the plaintif was injured. He, with others, had been so engaged during the progress of the game, and where the plainuft was, or near thereto, a hole about a foot deep had been made in the bank tour or five feet from its base. Some one used an iron ice hook instead of his fingers to get out the clay. While so engaged near the foot of the bank, the top of the bank caved, and a portion of it fell upon the plaintiff, Kinz, and he was injured.
cowett v. AMERICAN WOOLEN CO.
SUPREME JUDICIAL Court, MAINE, JUNE, 1903. At the time of the injury the plaintiff was employed in the cardroom of the defendant's mill, and it was a part of his duty to feed and clean the cards. He undertook to clean the waste out of the cogwheels at the end of the rollers while the machinery was running. To pick the wool from the cogs, he was obliged to use his left hand in the narrow spice between the wheels and the rollers, employing his thumb and forefinger for that purpose. This brought his little finger very near to the rollers, and while so employed it was caught between the large cylinder and one of the smaller strippers on top of the cylinder, drawing in and partially crushing the hand. He was sixteen years of age, and had worked in the cardroom for two years and a half. The cogwheels, cylinders and strippers were all in plain sight, and his testimony shows that he knew and appreciated the danger of getting his hand between the cylinder and roller, and as to this he must be held to have assumed the risk. The plaintiff s claim, however, is that there was another and hidden danger, of which he did not know, and could not have known in the exercise of reasonable care and diligence, and which was the real cause of the injury he received. In the collar on the shaft of and at the end of the stripper, near to the plaintiff's hand, there was a small set-screw with an oval head, in which was a slot with sharp edges. The head of this screw was about one-quarter of an inch broad, and projected about one-sixteenth of an inch from the rapidly revolving collar. The plaintiff claims that the head of this screw hit his hand, surprising him, and causing him, by a sudden and involuntary movement, to draw his hand into the machinery, where it was caught and injured. It is claimed that it was the master's duty to place a guard over the head of the screw, or to warn the plaintiff of its existence, which was not ordinarily perceptible, and of which he had no knowledge.
Even if the plaintiff's theory in regard to the manner in which the injury was received had been sustained by the evidence, there is another objection which is fatal to his recovery. It was not the
duty of the defendant to provide absolutely safe machinery. The law imposes no such burden upon the master. He is not an insurer. It is his duty to provide and maintain machinery which is reasonably safe in view of the uses that are to be made of it and the work that is to be performed upon it and around it. He is responsible for any injury arising through any defect in the machinery which was or ought to have been known to him and was unknown to the servant. He is not required io anticipate and guard against every possible danger, but only such as are likely to occur. The degree of care should rise with the danger ; but, assuming as true the plaintift's position, that it was within the contemplation of the parties that he should clean the machine while running, we do not think the defendant ought to have known that such an injury was likely to occur. That the oval head of the set-screw, projecting one-sixteenth of an inch from the revolving collar near the plaintiff's hand, by coming in contact with his finger would cause him injury, or cause bim to make any such involuntary movement as would be the occasion of such an accident or injury as that complained of in the present case, was a possibiliry so remote, a thing so unlikely to happen, that it could not be foreseen or anticipated by the detendant by the exercise of reasonable care. Such being the fact, neither his failure to place à guard over the head of the screw nor his omission to warn the plaintiff of the darger constitute negligence on his part.
ISHAM v. BRODERICK et al.
SUPREME COURT, MINNESOTA, MAY, 1903. Landlord and tenant-Municipal corporations-Streets—Sidewalk-Water from root freezing on walk and
pedestrian falling thereon.
1. The owner's entire surrender and control of leased premises to the lessee will not relieve him from liability to third persons for the premises being, at the time of such surrender, in a condition dangerous to the public, or with a nuisance upon them, for by the act of letting he, in law, authorizes the continuanca of the nuisance, and is, therefore, liable to strangers for injuries suffered therefrom. And the fact that his lessee covenants to repair furnishes him no protection, for the mere relation of lessor and
lessee has no