[CHANCERY DIVISION.] RUDD V. BELL ET AL. Master and servant-Negligence-Foreman and fellow servant. The plaintiff having had years of experience in running iron work machines and having been previously employed by the defendants in their wood working manufactory, hired a second time and was injured in working a jointer which he was told other men had been injured at. In an action against his employers Hell, that plaintiff knew from his own inspection and experience that the machine was dangerous, that it needed caution and firmness in operating; that the risks were open to his observation and that his opportunities and means of judging of the danger were at least as good as those of his employers, and a motion to set aside a nonsuit entered at the trial was dismissed. Negligence on the part of a manager or foreman is not constructive negligence on the part of the master. Actual personal negligence of the master must be established as a foreman is but a fellow servant, though may be of a higher grade. it THIS was a motion to set aside a nonsuit and for a new trial in an action brought by John Rudd, a workman, against his employers, W. Bell, A. W. Alexander, and W. J. Bell, for injuries received from machinery while in the employ of the defendants, on the ground that there was evidence to shew negligence on the part of the defendants. The action was tried at the Fall Assizes held at Guelph, on November 25th, 1886, before Armour, J., and a jury. G. W. Field and J. L. Murphy, for the plaintiff. The evidence went to shew that the plaintiff was hired to run a machine called a "Daniel planer" in the factory of the defendants: that he had some years before been in the employ of the defendants running a tenon machine, and for many years past had been employed in a sewing machine shop and elsewhere, using milling machines, drills, and lathes for iron working: and that when he first went to work for the defendants he was told by the foreman to run some pieces of wood through a jointer or buzz planer which would have to be done before he could start on the "Daniel planer." Before starting he asked the foreman if there was any danger of a person being cut, and was told that people had been cut, but that he would be all right. The jointer was a machine in which knives were working on a revolving cylinder from underneath through a space or slot in an iron table and open to view as they appeared through the slot when not covered by the pieces of wood being planed. Plaintiff successfully ran a number of long pieces of wood through this planer, but when he came to some short pieces his hand was drawn into the machine and badly cut, so as to impair his future usefulness at his ordinary calling. The danger of injury to an inexperienced workman was in putting short pieces, six to eight inches long, through the machine. After the accident a guard was put upon the machine; but the evidence shewed it was not usual to have a guard on such machines when experienced men were working them, but that guards were used when inexperienced men were put to work; and that experienced men sometimes used a guard when putting short pieces through, and that it was not retained on this machine. At the close of the plaintiff's case Mr. MacDonald contended there was no evidence to go to the jury, and the learned Judge being of opinion that there was no evidence of negligence, or if there was that it was the negligence of the foreman, dismissed the action. From this judgment the plaintiff appealed by moving to set aside the nonsuit, and the motion was argued before the Divisional Court on December 10th, 1886, before Boyd, C., and Proudfoot, J. J. L. Murphy, for the motion. There was evidence to shew negligence on the part of the master. The learned Judge was wrong in holding that it was the negligence of a fellow workman. The plaintiff's claim is simply for the actual or constructive negligence of the master. The machine was dangerous to an inexperienced workman, and the master, through his foreman, was aware of it as well as of the inexperience of the plaintiff, and did not warn him A master is not bound to insure the safety of a servant, and a servant is bound to take ordinary risks, but not risks which are not appreciable by him and of which the master has knowledge. A master must use care in the protection of servants. A servant does not assume risks The machine which caused the that are not obvious. accident was more dangerous than the one he was hired to work. The evidence shewed that experience in iron working machinery would not acquaint a man with the dangers of wood working machinery. I refer to: Weems v. Mathieson, 4 Macq. Sc. Ap. 215; Clarke v. Holmes, 7 H. & N. 937; Grizzle v. Frost, 3 F. & F. 622; Sharp v. Pathhead Spinning Co., 12 C. of Sess. cas. 574; Heske v. Samuelson, 12 Q. B. D. 30; Cripps v. Judge, 13 Q. B. D. 583; Murphy v. Smith, 19 C. B. N. S. 361; Wood's Law of Master and and Servant, 2nd ed., ss. 359, 360, 366, 367, 368; Searl v. Lindsay, 8 Jur. N. S. 746; Railroad Co. v. Fort, 17 Wallace 553; Matthews v. The Hamilton Powder Co., 12 O. R. 58; Hough v. Railway Co. 100 U. S. 213; Booth v. Boston and Albany R. W. Co, 67 N. Y. 593; Harper v. Indianapolis and St. Louis R. W. Co., 44 Mo. 488; Shaffer v. Haish, 1 C. R. 607 (1); Waldhier v. Hannibal and St. Jo. R. W. Co., 3 W. R. (2) 245; Rummell v. Dilworth, 1 C. R. (1) 905; Brydon v. Stewart, 2 Macq. Sc. Ap. 39; Paterson v. Wallace, 1 Macq. Sc. Ap. 748; Clowers v. Wabash, 3 W. R. (2) 416; Atkins v. Merrick Thread Co., 3 N. E. R. (3) 39; Jones v. Lake Shore 14 N, W. R. (4) 551; Pittsburgh R. W. Co. v. Adams, 3 W. R. (2) 387; Ormond v. Holland, El. B. & El. 102; Senior v. Ward, 1 El. & El. 385; Ashworth v. Stanwix, 3 El. & El. 701; Dynen v. Leach, 26 L. J. Ex. 221; Vicary v. Keith, 34 U. C. R. 212; Rowland v. Missouri, Pacific Co., 3 W. R. (2) 194 ; Copper v. Louisville R. W. Co. 17 N. R. (5) 749. (1) Central Reporter. (2) Western Reporter. (3) New England Reporter. (4) North Western Reporter. (5) North Eastern Reporter. American publications not in Library.-REP. 7-VOL. XIII O.R. A. H. MacDonald, contra. The evidence shews the plaintiff was told that persons had been cut on the machine, and so he was warned. The defendants are not bound to take more than usual precautions, and they did take those. If the plaintiff was not obliged to work the jointer, as he says he was hired to run the Daniel planer, and if he did choose to work it, he was a mere volunteer, or if part of his engagement was to run the jointer he did not, in doing so, incur any greater risk than was known to him, and than is usually incident to the work of those employed on power wood-working machinery. A master is not liable for the inexperience or want of knowledge of a servant. In Matthews v. The Hamilton Powder Co., supra, a director had a personal knowledge of the defect in the machinery; and that case sustains the principle that the knowledge of the servant is not that of the master, and that the servant's negligence does not render the master liable for an injury to a fellow servant. See also Miller v. Reid, 10 O. R. 419; Priestley v. Fowler, 3 M. & W. 1; Seymour v, Maddox, 16 Q. B. 326; Ryan v. The Canada Southern R. W. Co., 10 O. R. 745, at 753. If the Judge is reasonably of the opinion that there was no negligence he has the right to withdraw the case from the jury. The plaintiff wholly failed to shew that the defendant's foreman was in any way incompetent. Murphy, in reply. January 8, 1887. BOYD, C.-In the case of a servant who enters into the service of a master who carries on a dangerous trade, the right of the servant to be protected in his person, is largely modified by the contract between master and servant. The servant is considered to contract that he will run all the ordinary risks arising from the nature of his master's business, and from the regulations under which it is carried on, and all risks arising from the negligence of his co-servants: Mellish, L. J., in Woodley v. Metropolitan District R. W. Co., 2 Ex. D. 391. There is no cause of action on the part of the injured servant, unless it is alleged and proved that the danger which caused the accident was known to the master and unknown to the servant. Unless it is proved directly or by facts from which it may be inferred, that the servant was ignorant of the existence of the danger, he must be nonsuited: Griffiths v. London and St. Katherine Docks Co., 13 Q. B. D., 261-Bowen, L. J. The line of argument for the plaintiff was, that the machine on which the plaintiff was employed was of a peculiarly dangerous character, not appreciable by a person without experience of its working; that the defendant had knowledge of its dangerous character and did not, through his foreman or otherwise, warn the plaintiff of the risks he ran, and so has been guilty of culpable and actionable negligence. I do not thus read the evidence. The machine was to some extent of a dangerous character, but it was so obviously; and the plaintiff was not an inexperienced workman to the knowledge of the employer, nor was he so in fact. He had been working at iron working machines for sixteen years, and had also worked for some days (seven or eight) three years ago on wood working machinery— such as is now in question-in the defendant's employment, and he was hired in the present service to work “a Daniel planer." He was set to work on the buzz planer in order to prepare pieces of wood for the Daniel planer; and after working about an hour and a half at the buzz planer he had his fingers cut by the knives. But the danger from the running of these knives was one of which the plaintiff could judge as much as the master. There was nothing latent or concealed. It was "a seen danger," open to his observation, and which it required no special skill or training to guage. In cases where both parties have equal means of knowledge the rule is, that the master is under no obligation to provide for the safety of the servant to a greater extent than the servant is bound to provide for his own safety. |