
    ELIGH v. GOLDIE.
    1. Master and Servant — Personal Injury — Defective Appliance— Promise to Repair — Assumption of Risk.
    Where a servant continues in his employment, and uses a defective appliance for a reasonable time, upon repeated promises that it shall be repaired, and is injured, the question whether he assumed the risk is for the jury.
    
    2. Same.
    By joining the ends of a belt with rivets, as required by the foreman, because of the absence of lacing, for which the servant expressed a preference, and continuing the use of the belt, the servant assumed the risk of injury from the belt so joined, there being no claim that any misrepresentation was made to him.
    Error to Bay; Shepard, J.
    Submitted December 7, 1905.
    (Docket No. 163.)
    Decided April 30, 1906.
    Case by Edgar Eligh against William Goldie for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.
    
      James Donnelly, for appellant.
    
      Cooley & Hewitt, for appellee.
    
      
       As to effect of employé’s continuing work on master’s promise to remove a specific cause of danger, see note to Illinois Steel Co. v. Mann (Ill.), 40 L. R. A. 781.
    
   Moore, J.

Plaintiff is about 50 years of age, and had worked in and about a hoop mill for several years, when he entered the employment of the defendant on or about April 1, 1902. He had done some work toward putting a machine in order which was to be used for the purpose of sawing from slabs bolts which were afterwards sawed into hoops. These slabs were pushed over a table through which came the circular saw which sawed the slabs into bolts. He commenced using this machine April 1st. On the 24th of April a bolt or a piece of the slab was caught upon the saw and thrown forward with great force, striking the plaintiff and injuring him. In January, 1903, while in the act of oiling a planing machine on which he was employed, a new belt came apart and struck his hand in such a way as to injure it severely. It is for the two injuries thus received that this action is brought. The circuit judge directed a verdict in favor of defendant. The plaintiff brings the case here by writ of error.

It is the claim of plaintiff that, because there was no guard back of the saw, such as is usually put there to make it safe to operate such a machine, the accident occurred. He admits that when he went to work he knew the guard was not there, but testified that defendant’s foreman, before the machine was started, asked him to start the machine and make some hoops, so Mr. Goldie could see the kind of work the machine would do before he went away. And the foreman at the same time said: “Ed., there is no guard behind that saw. You go on and make some hoops for Mr. Goldie, and as soon as you try it I will put a guard on.” That plaintiff started, and continued to work on the machine, and the foreman did not put a guard on. That plaintiff asked for a guard to be put on, three different times, between the time when he began to work, about the 1st of April, and the 24th of April, when he was hurt. The first time, after beginning work, the plaintiff asked that a guard be put on, the foreman said to the plaintiff: “ You never mind. I will attend to that.” The next time the plaintiff asked for a guard he was going to quit, and the foreman promised faithfully to put the guard on. The last time plaintiff asked for a guard, a hoop came over and struck the back of his' hand, and plaintiff then went to the foreman and said to him, “You are not doing as you agreed. * * *” “Now,” he says, “never mind, Ed.; there are so many breakdowns. I will get it done just as soon as I can, and put it on there. You go and attend to your work, and I will fix that up.”' Plaintiff was injured four or five days after this last promise to remedy the defect. Plaintiff says he relied, upon these promises, and because of them continued to work.

Counsel for defendant say the case is within Hayball v. Railway Co., 114 Mich. 135, and the verdict for defendant should stand. There is language used in the opinion which tends to support this claim. It was not, however, necessary to use it in disposing of the case. A comparison of the facts in that case with the facts in the case at bar will show a very great difference in them. The rule of law which should control as to this feature of the case is well stated in Mann v. Railway Co., 124 Mich. 641, and, if there is any conflict in the statement of the rule between the last-named case and Hayball v. Railway Co., the case of Mann v. Railway Co. should control. We think the testimony offered on the part of the plaintiff brings this case within Mann v. Railway Co., and cases cited therein. See, also, Illinois Steel Co. v. Mann, 40 L. R. A. 781 (170 Ill. 200), and the many cases cited in the notes to said case.

As to the injury received because the belt parted, the testimony disclosed that the ends of a new belt needed to be fastened together before it could be used to run the planer. The plaintiff undertook to do this work, and intended to-fasten the belt by lacing it; but, when he went to the room where the leather from which the laces were cut was usually kept, he found it had all been used. He then went to the foreman and asked for lacing, telling him he did not want to use the rivets. The foreman told him they were out of the lacing material and to use the rivets. This is substantially all that occurred between him and the foreman. He says he did not desire to use the rivets, because he preferred to put in the lace leather. No other representations were made to him by the foreman. There is nothing in his testimony that indicates a lack of knowledge with reference to the manner in which the belt was fastened, nor that any representations were made to him to lead him to suppose that the belt would be fastened in any other way than it was. As to this feature of the case he must be deemed to have assumed the risk.

For the reasons stated, the judgment is reversed, and a new trial ordered.

Carpenter, C. J., and McAlvay, Blair, Montgomery, Ostrander, and Hooker, JJ., concurred. Grant, J., took no part in the decision.  