
    Nels Anderson vs. H. C. Akeley Lumber Company.
    August 24, 1891.
    Master and Servant — Defective Machinery — Assumption of Risk.— The plaintiff was operating a planing-machine, to which the power was applied by a large belt, the motion of which was very rapid. He was familiar with such machinery. He knew, as the evidence is deemed to-show, that the fastening of the belt had become insecure, so that it was liable to break apart, and called the foreman’s attention to it; but the-latter declined to repair it, and told the plaintiff to go on with the use of the machine. Held, that the plaintiff must be deemed to have known the risk, and to have assumed it.
    Appeal by defendant from an order of the district court for Hen-nepin county,' Smith, J., presiding, refusing a new trial after verdict of $2,000 for plaintiff in an action for a personal injury.
    
      Ripley, Brennan á Booth, for appellant.
    
      Steele é Rees, for respondent.
   Dickinson, J.

While the plaintiff was engaged as a servant of the-defendant in operating a planing-machine in its mill, a large leather-belt, by which the machine was driven, parted at the place where the ends of the leather strip were united to form the belt, and struck the plaintiff’s elbow, causing an injury for which this action is prosecuted. The defendant is charged with liability for negligence in respect to the fastening of the belt above referred to, the alleged fault being not in the method employed, but that the fastening had been allowed to-become and to remain insecure. We have come to the conclusion that the case did not justify a recovery, for the reason that it is apparent that the plaintiff knew and assumed whatever risk there may have been from the defect complained of. A brief statement of the-case will show the reason for this conclusion.

One Godfrey was the defendant’s foreman in this department of the mill, whose duty it was to personally repair defects of the nature of that complained of, when necessary. His duties and relations, were such that it was ruled by the trial-court, and, as we are inclined to think, correctly ruled, that he stood in the place of the principal,. as to the matter here in question, so that negligence on his part would be deemed to be the negligence of the defendant. Without further statement or comment upon that point, we assume this to be the proper principle applicable to that feature of the case. This belt was about four inches wide. The fastening referred to consisted of five brass hooks. The belt was at the side of the machine, fully exposed to view. It ran over a large pulley at one end of the machine, and over a small pulley, four or five inches in diameter, at the other. The motion of the belt was very rapid,' — about 30 miles an hour. The plaintiff was of the age of 2i years. He had been at work with such machines about a year and a half, and for a year before the accident he had been in charge of and personally operating one of them, handling the lumber as it was run into the machine, oiling it, setting it in motion, and stopping it, as occasion might require.

On the day of the accident, according to the testimony of the plaintiff, as he was about to start his machine in the morning, he observed that one of the hooks or fastenings in the belt was gone. On cross-examination he said that one or two of the hooks were out, and that “the belt was near gone,” and that he so stated to the foreman, whose attention he called to the subject. He informed the foreman of this, because, as he says, he “thought there was something wrong.” He testifies that when he reported the matter to the foreman, and told him he thought the belt would have to be fixed, the foreman examined it, and then said: “That belt is all right; you go ahead.” The plaintiff set the machine in motion, and used it about half an hour, when he stopped it to get a new supply of lumber. He looked at the belt then, and it seemed to be as .it had. been before. He again started the machine, and after it had run a. few minutes the belt broke apart, with the result before stated.

There were five such machines in the same room, where the plaintiff had been long at work. The evidence shows that the breaking apart of such belts is a frequent occurrence, and cannot be avoided. The plaintiff, however, says that he never saw one of these belts break before, “because every time the machine was stopped a man had a chance to see it before it started.” He did know of other belts breaking under the machine.

In our judgment, the following conclusions must be accepted as being perfectly apparent from the evidence: In view of his age and his experience in operating such machines, he must be presumed to have had at least ordinary knowledge and judgment as to the conditions- to- which we have referred. He is to be deemed to have known that, this belt was being driven with great velocity; that by it the power was applied for the operating of this machine; that the belt might .be expected to break apart unless its fastenings were secure; and that, if it should break while in such rapid motion, it might reasonably be expected to strike any object in the immediate vicinity with considerable violence. Not only may it be said that he should be presumed to have known that, unless the fastenings were kept secure, the belt was liable to break apart, but it is apparent from his own testimony that he did know this, and that he knew that this fastening had become insecure. His testimony that the belt was “near gone,” and that he so told the foreman, if true, can have no other meaning. No reason can be suggested for his reporting the fact to the foreman than that .he thought that the belt was liable to break apart. It is therefore to be concluded that he assumed the risk, which was as apparent to him as it could be to any one. It doeR not appear that any necessity rested upon him to proceed with the use of the machine with the belt in that condition, or that he was unwilling to take the hazard of doing so. It may be inferred that the foreman would not repair it at that time; but it is not shown that the plaintiff might not have done so himself in a few moment’s time, although it was not within the general scope of his duty to repair belts in the mill.

Order reversed.

Note. A motion for a reargument of this case was denied October 7, 1891.  