Plasikowski v. Arbus , 92 Conn. 556 ( 1918 )

The cause of action in the case now before us is based upon the assumption that the defendant's negligence subjected the plaintiff to arrest, the expense of defending himself, and to humiliation caused by such arrest. As bearing upon this claim the plaintiff contends that "there was an implied contract on the part of the defendant to indemnify the plaintiff for his loss in defending himself, and for the damage otherwise sustained." An employer is under no obligation to warn an employee of dangers which are obvious, nor to instruct him in matters which he may fairly be supposed to understand. Nor is it the duty of the master to admonish his servant to be careful, when the servant knew or ought to have known the danger and the importance of using care to avoid it.McGorty v. Southern New England Telephone Co.,69 Conn. 635, 643, 38 A. 359. As stated by Morton, J., in Kenny v. Hingham Cordage Co., 168 Mass. 278,282 (47 N.E. 117): "The question in each case is not whether the employee has actually observed and by a conscious act of the will assumed all of the risks involved, but whether the risks are incident to and naturally grow out of the employment in which he is engaged, and are such as, taking his age, intelligence, and experience into account, he must be held to have appreciated if he saw, and such as, if he did not see, he could have seen and understood if he had looked. If the risks are of this character, then they are said to be obvious, and the employee assumes them." See, also, Hayden v. Smithville Mfg. Co., 29 Conn. 548. It appears that the plaintiff was not a boy placed by the defendant in the performance of labor with which he was unfamiliar. From the position which he occupied we must assume that he was a person familiar with the ordinary parts of an automobile and that he was a competent operator. From information which the plaintiff's complaint affords, it appears that he had driven this particular automobile through various parts of Connecticut when it was in the same condition as on the day of the accident. The elements of danger upon which the plaintiff now relies must have been visible to him, and it cannot now be supposed that his management of this automobile at the time of the accident would have been affected by any information that the defendant could have given him as to the alleged defect. Much less could the defendant have had reason to believe that a man of the plaintiff's knowledge, skill and experience with his automobile, who knew or ought to have known much more about its brakes and the danger connected with the operation of the machine than the defendant, need be told of the possibility that some person might be injured because of the defect upon which the plaintiff now bases his cause of action. In other words, upon the most favorable view of the plaintiff's case which can be taken from his own statement of the facts, there was no information which the defendant could have imparted to the plaintiff which he did not already possess, or by ordinary observation could not have obtained. Under such circumstances, it was not the duty of the defendant to admonish the plaintiff of the danger which the plaintiff knew or should have known. Certainly there was nothing in the situation that was not as obvious to the plaintiff as it was to the defendant. The complaint, viewed in this aspect, shows it to be insufficient. It fails in not showing that there was any duty on the part of the defendant to notify the plaintiff of this alleged defect. It is clear from the plaintiff's own statement of his case that the danger upon which he now relies was an obvious risk, incident to his employment by the defendant, and as such was assumed by the plaintiff.

There are several other important questions suggested by the demurrer which do not now require our consideration.

There is no error.

In this opinion the other judges concurred.