On the Merits.
No question but that the burden of proof is in this case on plaintiff to show that the defective coupling was the proximate cause of the accident.
This burden has been met. Plaintiff shows' by his testimony that his foot missed the device that stopped the live rollers, and, in consequence, he fell against the coupling. There was a brake near the end of the coupling by which defendant was caught.
A different issue would be presented if he had been leisurely leaning against the shaft.
The evidence on that point is to the contrary.
Again, defendant urged that, although the shaft is smooth, and though the couplings have no rough or broken places in them, they may catch the clothing of any one standing near, twist it around, and thereby cause a serious, if not fatal, accident; that is, this shaft is always dangerous.
That is, doubtless, quite true, and shows the greater necessity on the part of defendant to have the shaft and coupling inspected in order to avoid adding to the danger.
*900The averment that, owing to plaintiff’s familiarity with the appliances of a sawmill, he was aware of the defect, or should have been aware of the defect, cannot be of any avail in this instance, for the only testimony there is upon the subject is that plaintiff did not know that there was a rent or break in the coupling.
There is no rule under which the court will hold that he should have known of this broken place, particularly as he was only a mill-hand who had naught to do with the supervision and inspection of the appliances.
But the contention of defendant is that plaintiff should have complained of this break, or should have refused to continue with his work.
Granted for a moment that he did know of the break, the answer to the contention is, workmen would sometimes make themselves very disagreeable if they insisted in pointing out defects or in asking for repairs of broken pieces of machinery, although those in charge did not see proper to make them. If they left on that account hastily, they would find themselves without work.
They are held to have had knowledge in case of a patent and threatening danger of which they are well aware.
The following are pertinent authorities:
Defendant failed to warn plaintiff was one of the issues in the case cited infra. In the case here no warning had been given to plaintiff by defendant and no instruction. Daly v. Kiel, 106 La. 170, 30 South. 254; Lindsey v. Lumber Company, 108 La. 468, 32 South. 464, 92 Am. St. Rep. 384; Hailey v. R. R. Co., 113 La. 533, 37 South. 131.
The owner must manage to keep machinery in order, or else in case of accident he is exposed to liability. That is another issue settled by repeated decisions. Clairain v. Western Union Telegraph Co., 40 La. Ann. 178, 3 South. 625; Williams v. Lumber Co., 114 La. 805, 38 South. 567; Hoses v. Grant Lumber Co., 114 La. 933, 38 South. 684; Roff v. Summit Lumber Co., 119 La. 571, 44 South. 302.
If the defendant knew of the danger, it should have applied the remedy. If it did not know, plaintiff cannot be held negligent because he did not know that which defendant should have known. Carter v. Lumber Company, 113 La. 239, 36 South. 952.
There is such a thing in law as constructive knowledge to which defendant must be held. Its foreman and the man at work in oiling the machinery should have known of the break. Myhan et ux. v. Electric Light & Power Company, 41 La. Ann. 964, 6 South. 799, 7 L. R. A. 172, 17 Am. St. Rep. 436; Burns v. Cypress Company, 114 La. 247, 38 South. 157.
The cause, as made to appear by the record, is not that of one who wantonly exposed himself. The cause finds support in Stucke Case, 50 La. Ann. 172, 23 South. 342; Smith v. Lumber Company, 114 La. 1035, 38 South. 821.
Now, as to the amount of damages:
There is some similarity between this case and the Broadfoot Case, 111 La. 467, 35 South. 643, in which plaintiff was whirled around by a fast revolving shaft
Plaintiff was not whirled around, though he was severely shaken. None of his limbs were broken.
Plaintiff cited this last case as a precedent which would justify allowing larger amount in damages.
In .the cited case, the injuries were of a very serious character. Plaintiff’s limbs were broken. Here no limbs were broken. There were severe bruises suffered from which plaintiff has recovered.
After consideration,' we have concluded to decline granting an increase in damages.
The law and the evidence being with plaintiff, for reasons stated, the judgment is affirmed.