
    [No. 6127.
    Decided July 20, 1906.]
    David B. Hunter, Appellant, v. Washington Pipe & Foundry Company, Respondent.
      
    
    Master and Servant — Duty to Guard Machinery — Contributory Negligence. Contributory negligence which, is the proximate cause of an injury, is a good defense notwithstanding the neglect of the defendant to perform the statutory duty of providing guards.
    Same — Contributory Negligence — Proximate Cause. An employee who approaches a machine in motion at a dangerous place to wipe off oil, is guilty of contributory negligence, as a matter of law, if such negligence was the proximate cause of the injury, where it appears that the machine was idle one-fifth of the time, when the oil could be wiped off with safety, and when there was no immediate need of wiping the machine at that time.
    Same — Condition oe Floor as Proximate Cause. Where an employee was injured by unnecessarily stepping upon a slippery floor, which it was his duty to inspect and keep clean, and he was there by reason of his own neglect, the condition of the floor cannot be the proximate cause of the injury, as a question for the jury.
    Same — Failure to Guard Cogs — Proximate Cause. Where an employee in a factory is injured by having his hand caught in unguarded cogs, by reason of his own neglect in unnecessarily going, at an improper time, into a dangerous place, which it was his duty to keep safe, the failure to guard the cogs cannot be the proximate cause of the injury as a question for the jury.
    Aippeal from a, judgment of the superior court for Pierce county, Huston, J., entered September 13, 1905, upon the verdict of a jury, rendered by direction of the court in favor of the defendant, in an action for personal injuries sustained by an employee in a factory.
    Affirmed.
    
      Govnor Teats, for appellant.
    
      Bichard 8. Eskridge (T. O. Abbott and Philip Tindall, of counsel), for respondent.
    
      
      Reported in 86 Pac. 171.
    
   Hadley, J.

This action was brought to recover damages for personal injuries received by the plaintiff while working in the factory of the defendant. The defendant operates, a plaint for the manufacture of pipe, and the plaintiff was, at the time of receiving his injuries, engaged as a helper around what was called a “winding machine.” This was a large machine run by power and consisted in part of large and small cogwheels used to operate the device for winding wire about wood pipes constructed from staves. The plaintiff alleged in his complaint that the defendant negligently allowed the cogwheels to be exposed and failed to guard or cover them; that while in the discharge of his duties, it became his duty to wipe the oil from the side of the machine; and that while so doing, at a distance of about eight inches, from the cog wheels, through no fault of his own, he slipped and fell, by reason of the oily and slippery condition of the floor, which condition was not known to him; that in falling his right hand went into the cogs and cogwheels, which were then in operation, and that his hand was thereby mutilated and permanently injured. The defendant denied that it was negligent, and affirmatively averred that the plaintiff assumed the risk of the situation, and that he was also guilty of negligence which was the contributing cause of his injuries. The cause came on for trial before a jury and, at the close of plaintiff’s testimony, the defendant challenged the sufficiency thereof, and moved that the cause be taken from the jury and that judgment should be entered for the defendant. The motion was granted, judgment was accordingly entered, and the plaintiff has appealed.

The evidence submitted by appellant disclosed that his usual occupation was that of a teamster. He was forty-four years of age, but had. never been accustomed to working about machinery. “He had been working about this machine more than two weeks at the time he was injured. His duties as a helper were somewhat varied, and it does not appear that they had been fully defined by any specific instructions given.

It appears that he was expected to assist in building up pipe from the staves preparatory for the winding process, and that he did so assist. He also assisted in adjusting the wire ready for the winding. When he went there to work he found much debris about the machine. This he was- told to clear away, and was commended by the foreman for so doing, the latter saying to him, in effect, that he was there for just such purposes, and instructing him to go- ahead and do whatever of that character he saw should be done. He testified that it was a part of his duty to keep the floor clean around the machine; that at times oil dripped upon the- floor about the machine, and that he put- sawdust upon the floor to absorb the oil. ■ He had slipped a few times by reason of the slippery condition of the floor. He testified that the machine was at rest about one'-fifth of the time, this being occasioned by the removal of the pipe and the adjustment of new pieces ready for the winding, together with the adjustment of the wire.

Just prior to- receiving his injuries, he observed some o-il on the side of the machine just below the cogwheels. The machine was in operation at the time, and assuming a stooping posture-, he wiped this oil away, his hand being within a few inches of the moving wheels. As he undertook to arise he slipped and his hand was thrown out in such manner that it was caught by the cogwheels. He knew of the general slippery condition of the floor, but says he did not know at the time just what caused him to slip-. Hive days after the accident he went to the factory, and he says he then discovered a small knot in the floor, which he believes caused bi-m to slip, arid of which he did not know before. He attributes his injury to negligence of respondent because of tbe unguarded cogwheels, and, also', because of tbe condition of tbe floor which, be says, was unknown fo him.

In view of tbe time appellant bad been working about the' machine and of tbe further fact that it was one of bis duties to keep the floor clean at that very point, we do not see bow it can be said that be did not know tbe condition of tbe floor. There were no attending circumstances or conditions which operated to conceal tbe situation from bim. It was open and obvious and, from tbe nature of bis work, be must have passed over it and about it many times during each day. His particular duty to keepi tbe floor clean should have directed bis attention to it. We therefore think that be should be held to have known the condition of tbe floor as a matter of law. Knowing this condition;, lie undertook to wipe the machine in tbe manner and at tbe time above stated. It is true tbe cogwheels were unguarded, but notwithstanding tbe statutory duty of respondent to provide a guard, still if tbe proximate cause of appellant’s injuries was bis own negligence, be is not entitled to recover. The defense of contributory negligence still obtains even though be did not assume the risk of unguarded machinery. Hall v. West & Slade Mill Co., 39 Wash. 447, 81 Pac. 915. In that case this court said:

“It is true that in such cases contributory negligence and assumption of risk approximate and it is difficult- to draw a line between them; but we think that to convict an employee of contributory negligence for working in a place where be does not assume tbe risk of injury, it must be shown that be did not us© care reasonably commensurate with tbe risk to avoid injurious consequences — in other words, that it was some negligent act of bis own. that caused bis injury and not alone tbe dangers of bis situation.”

Does tire evidence in this case show, as a matter of law, that appellant used “care reasonably commensurate with the risk to avoid injurious consequences?” He does not show that he was instructed to wipe the machine at that place while it was in operation. Upon the other hand, he does show that there was abundant time to do it while the machinery was at rest. With the machine idle one-fifth of the time, there were two hours of time in each day of ten hours when this work could have been done with absolute safety. There was> nothing about the presence of the oil upon the side of the machine that made it necessary to* remove it at the particular tim|e. Notwithstanding the fact that the cogwheels were unguarded, yet the situation was open and obvious, and apr pellant was hot at the time engaged in duties which he was required then to discharge. But he voluntarily approached the unguarded machinery at a time when he was not discharging a necessary duty in connection with his employment. It seems to us impossible to- escape the conclusion that appellant was guilty of contributory negligence, as a matter of law. The minds of reasonable men cannot differ as to the negligence' of one who voluntarily piuts himself in a place of obvious danger and which is not necessarily incidental to his regular duties.

We believe the facts of this case come directly within the principle ■ applied in Beltz v. American Mill Co., 37 Wash. 399, 79 Pac. 981. Beltz was the operator of a resaw and was attempting to remove sawdust from a point near the saw, and while it was in motion. It was contended that the mill company had negligently failed to provide a safeguard for the saw as required by the laws of the state. But it was shown that means were provided for stopping the saw while removing the sawdust without interfering with the operation of other machinery in the mill. Beltz was therefore not required, in the discharge of his duties, to remove the sawdust while the saw was in motion. lie voluntarily assumed to do it in the manner in which he did, in the face of what we said was an open, apparent, and obvious danger, and he was denied recovery for the reason that his acts amounted to contributory negligence. Appellant argues that the Beltz case should be distinguished from this for the reason that he had control of the running of the saw and could have stopped it. We see no distinction in principle. Appellant in this case, it is true, did not control the stopping and starting of the winding machine. But he says that during at least one-fifth of the time it was not operated, and he therefore knew that at such time the oil could have been removed with safety to himself,

Appellant insists that whether the slippery condition of the floor was the proximate cause of the injury was a question for the jury. We have seen that, under the circumstances, he was hound to know the condition of the floor and, if he negligently assumed to do a thing which brought him into the presence of an open danger, it cannot he said that the condition of the floor was the proximate cause. But it must follow that it was primarily due to his own negligence. He cites Hoveland v. Hall Bros. Marine R. etc. Co., 41 Wash. 164, 82 Pac. 1090, where the jury were left to find if the condition of the ground was the proximate cause of the injuiy. Hoveland was, however, engaged in a duty which could'not he discharged when the machinery was not in operation. He was sharpening a chisel upon a grindstone which revolved with great velocity upon a shafting with unguarded couplings. His attention was at the time directed to the discharge of a duty which required his presence at the dangerous place, a duty which did not directly call his attention to the condition of the ground. Still, the jury were told that, if the condition of the ground was the proximate cause of the injury, and that he knew of that condition, he assumed the risk and could not recover. Hnder such circumstances it was perhaps not improper to leave the jury to find whether he knew of the condition and, if so, whether it was the proximate cause. But it is established that the appellant in this case was bound to know the condition of the floor as it was his duty to inspect it and keep it clean. With that knowledge he went upon the floor and into the presence of the danger when his duties did not call him there. He was there by reason of his own neglect* and there was therefore nothing to submit to* the jury touching the condition of the floor as in the Homeland case.

Again, it is insisted that it was for the jury to say whether the absence of a guard for the wheels was the proximate cause of the injury. From what has been said it is clear that there was no such question for the jury. Appellant was not there in the discharge of a duty then required of him. The first moving cause toward the accomplishment of his injury was his own negligence in voluntarily going into* the presence of an obvious danger when his incidental duties did not call him there. This was* therefore, the proximate cause, and not the unguarded cogwheels. Moreover appellant offered in evidence two photographs, one showing the machine in its unguarded condition and one showing it protected by a guard. These disclose that, if it had been guarded at the time of the accident, as shown in the second picture, appellant could not have removed the oil at the place where he was wiping the face of the machine, without first removing the guard. It is therefore evident that even the presence of a guard would not have protected him in what he was undertaking to dot For this reason, also, it cannot be said that-the absence of a guard was the proximate* cause of his injury.

The judgment is affirmed.

Mount, O. J., Budkin, Fullerton, Crow, Boot, and Dunbar, JJ., concur.  