Carr v. Wallace Laundry Co.

170 P. 107, 31 Idaho 266, 1918 Ida. LEXIS 22

• Court: Idaho Supreme Court
• Decided: January 9, 1918
• Status: Published

Opinion

RICE, J.

This action was instituted by the appellant to recover damages for personal injuries received by coming in contact with a protruding unguarded set-screw on the main driving shaft of respondent’s laundry. At the close of appellant’s testimony, the respondent moved for a nonsuit, which motion was denied. At the close of the respondent’s evidence the motion for nonsuit was renewed and motion made that the jury be instructed to return a verdict in favor of the defendant. The latter motion was granted by the trial court, and the jury returned a verdict in favor of the defendant. Judgment was entered accordingly, from which judgment this appeal is prosecuted.

The appellant was a servant of a contracting painter who had been employed to paint the interior of respondent’s plant. One coat of paint'had been applied to the ceiling and walls of the main room, and appellant had been engaged for two days, together with other painters, in applying the second coat. While painting the ceiling above the main driving shaft, which extended lengthwise of the laundry, and while reaching over and about a foot beyond the driving shaft, the sleeve of appellant’s jumper was caught by the protruding set-screw. It appears that the main shaft from which the set-screw protruded was about one foot, or perhaps a little more, below the ceiling of the laundry, and was held in place by hangers attached to the ceiling. The set-screw held in place collars around the shaft, which prevented the shaft from slipping or moving out of place: The main shaft was of steel, about two inches in diameter, and at the time of the accident was revolving at the rate of 165 revolutions per minute.

It appears that appellant received a general warning to be careful, but there is no evidence that he was warned of the existence of the set-screw, or that he actually knew of its presence. It was shown by his cross-examination that he did not look to see whether or not there was a set-screw protruding from the shaft or the collar.

It must be conceded that appellant in this case was at least an invitee'upon the premises of respondent corporation. (Gagnon v. St. Maries L. & P. Co., 26 Ida. 87, 141 Pac. 88.)

In 19 Eng. Ruling Cases, p. 60, the rule relative to the duty resting upon the owner of premises who invites another to come thereon is stated as follows: “A person who invites another to come on his premises upon a business in which both are concerned is bound to take care that his premises and all appliances provided by the owner as incident to the use of his premises are safe for that other person to come upon and use them as required; or else to give due warning of any danger to be avoided. But where the stranger comes as a guest, or by a bare licensé, the owner of the premises is only bound to warn him of anything in the nature of a trap upon the premises.” (Indermaur v. Dames, 19 E. R. C. 64; Carleton v. Franconia Iron etc. Co., 99 Mass. 216; Gustafsen v. Washburn etc. Mfg. Co., 153 Mass. 468, 27 N. E. 179; Brosnan v. Sweetser, 127 Ind. 1, 26 N. E. 555; Montague v. Hanson, 38 Mont. 384, 99 Pac. 1063.)

We are not directly concerned upon this appeal with the question as to whether or not the maintaining of the revolving shaft with the protruding unguarded set-screw was negligence upon the part of the respondent so far as its own employees were concerned. The appellant was upon the premises for the purpose of performing a certain labor, being at the time an employee of an independent contractor. The question of negligence is directed toward the duty which respondent owed to the appellant under the circumstances.

To the allegations of negligence in the complaint, respondent interposed only general denials. Upon the pleadings in this case the allegations of negligence are admitted. But assuming that objections on account of the failure to deny specifically the allegations of the verified complaint have been waived in this ease, we think that the evidence upon certain issues presented should have been submitted to the jury. Whether the respondent had been reasonably diligent to provide a safe place for the appellant to do his work, in view of the existence of the protruding set-screw, was for the jury to decide. That a set-screw protruding from a rapidly revolving shaft is dangerous to those coming in contact therewith will be conceded. The fact that certain witnesses testified that the set-screw could be plainly seen from the ground when the shaft was revolving is not conclusive that the set-screw was an obvious and open danger, of the existence of which the appellant, as a reasonably prudent person, is charged with notice. Appellant testified that he did not know of the existence of the set-screw, and we think it was a question for the jury to say as to whether or not he should have known of its existence. (Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465.)

The question of contributory negligence would be affected by the question as to knowledge of the existence of the setscrew. There is a substantial degree of difference between the danger incident to coming in contact with a revolving smooth steel shaft, and the danger of coming in contact with such a shaft containing a protruding unguarded set-screw, where the shaft is revolving at the rate of speed as shown by the evidence in this case. It cannot be said as a matter of law that the appellant was guilty of contributory negligence in the absence of knowledge of the existence of the set-screw, or unless as a reasonably prudent person he should have known of its existence. (Gustafsen v. Washburn etc. Mfg. Co., supra; Rollestone v. Cassirer, 3 Ga. App. 161, 59 ; Columbia Box & Lumb. Co. v. Drown, 156 Fed. 459, 84 C. C. A. 269.)

We conclude that it was error to take the ease from the consideration of the jury. The judgment is reversed and a new trial granted. Costs awarded to the appellant.

Budge, C. J., and Morgan, J., concur.