Burnside v. Novelty Manufacturing Co.

79 N.W. 1108, 121 Mich. 115, 1899 Mich. LEXIS 532

• Court: Michigan Supreme Court
• Decided: September 12, 1899
• Status: Published

Opinion

Long, J.

This suit was brought to recover damages for injuries suffered while operating one of defendant’s presses. The basis of the action, as charged in the declaration, is the negligent failure of defendant to furnish for plaintiff’s use a properly adjusted and reasonably safe press, and particularly to furnish a press for forming stove tops, which should be so adjusted, and in such a reasonably safe condition, that, when the same was being operated by means of a foot treadle, the upper die would only descend from its high position to and against, the lower die when being operated. The declaration charges that a machine or press was furnished which was improperly adjusted and in a dangerous condition, in that the said upper die would not, as it .should have done, uniformly and invariably stop at its highest position when the operator’s foot was removed from said treadle, and remain in such position until said operator renewed such pressure, but, on the contrary thereof, was likely to fall at any time and catch the hands of such operator, of all of which the said defendant had notice and the said plaintiff was ignorant.

The second count of the declaration is substantially the same as the first, with the further averment that on a few occasions the said upper die had improperly fallen, and before commencing work with said press on April 20, 1897 (the day the injury was received), plaintiff asked the defendant’s foreman, one John Ross, who had charge of said machines and presses and the repairs thereof, whether said press was safe, and whether there was any danger of said upper die falling, whereupon said Ross assured the plaintiff that said machine was safe, and that there was no danger of said die falling; and that, in consequence of such assurances, the plaintiff then and there commenced work on said press.

The press in question is known as an “ extra heavy, wide bed, double crank press.” The side columns are about 7 feet high, and the distance between them is 52 inches. The ram to which the upper die is attached is hung to eccentrics on the shaft. On the right-hand end of the shaft is a large wheel, which is geared into a pinion wheel below it, which is connected with the power by means of a tight pulley. There is also a loose pulley. There is a bedplate, to which the lower die is attached, and the faces of the dies are about 2-J- inches apart when in position. On the inner face of the large wheel are four blocks or dogs to engage with the clutch pin. This large wheel is loose on the shaft, and, when the power is on, is constantly revolving. The press is operated by means of a clutch mechanism. This clutch mechanism is principally contained in the shaft. The shaft is considerably enlarged next to the large wheel, and a hole is bored through from top to bottom, in which the clutch beam plays. Connecting with this hole, another hole is bored out through the face of the enlarged part of the shaft, coming out on a level with the dogs on the large wheel, in which the clutch pin plays. The clutch beam is shaped like an ordinary tenpin, except that a portion of the lower end is turned down, leaving a shoulder above. The clutch pin is a cylindrical piece of steel, about 5 inches long and 2 and 7-16 inches in diameter, with a hole in the rear end, through which the ball end of the clutch beam passes. Near the bottom of the clutch-beam hole, a hole is bored obliquely upward and forward, in which is inserted a hollow steel tube, containing a powerful spring. This spring presses strongly against the bottom of the clutch beam, and, when the clutch lever is released, forces the bottom backward and the top forward, moving the clutch pin out to engage with the dogs on the wheel. The clutch lever is a semicircular piece immediately below the clutch beam, with a channel wide at one end, and gradually narrowing to the other end. When the press is at rest, the bottom of the clutch beam rests in this channel, and retains the clutch pin within its hole. One end of the clutch lever is pivoted on the brake, which, in the shape of a lyre, surrounds the enlarged part of the shaft. The other end is connected with the top of the other end of the brake by a strong coil spring, and a chain passes from this free end of the lever to a treadle in front and at the right'of the press. The operator presses this treadle with his foot. This pulls down the end of the clutch lever, and releases the clutch beam from the channel. As soon as the beam is released, the beam spring forces the clutch pin out, which engages with some one of the four dogs in the large gear-wheel, and the upper die descends. As the shaft revolves, the clutch beam passes by the clutch lever, which is pulled back to its place by the coil spring, and, as the revolution continues, the clutch beam comes back to the lever, striking the wide part of the channel, and the taper of the channel gradually pushes the bottom end of the. beam to the front, and pulls the clutch pin back into its hole, and the press stops. There is a bolt through the upper ends of the brake arms, with a thumb nut, by which the brake can be tightened.

It appears that the press was purchased in December, 1894, and was put in operation in February, 1895. On the second day of its operation it did not stop at the top. This was reported to Mr. Law, the machinist of the defendant. It was taken apart, and the clutch pin and clutch slide were found to be bruised. From time to time until the time of the injury, on April 20, 1897, the press would not stop at the top, but, when reaching the highest point, would immediately fall or drop down. At different times the machine was taken apart, and the clutch pin smoothed off and put back again, and the machine would work properly. It would sometimes work properly for two months, and again it would drop every few days. In February, 1897, it dropped down, and the foreman took it apart and examined it. About two weeks before the injury it dropped again. Plaintiff knew of the die dropping four times from January 2, 1897, till April 20th; the last time being two weeks before the injury. Others saw it drop, and on each occasion the attention of Mr. Boss was called to it. Plaintiff had worked for the defendant from time to time, commencing in 1894. He worked part of the time on other machines near the machine in question. On Saturday before the accident he was set to work on this machine. It worked all right during that day. He was forming stove tops, and, in order to remove them from the lower die, he reached in with a straight piece of iron with one hand to lift up the edge, drawing the top out with the other hand, while the upper die was at its highest point. He testified that this was the way of drawing out the covers, that he never saw it done in any other way, and that “you have got to use your fingers to get them in and out. You tip up the back side so you can draw it out, using your fingers to tip it up and draw it out. The foreman, Ross, showed me how to do it. I am certain Ross used his hand in taking out the work as I did.”

Mr. Ross, the foreman, testified that he had charge of the presses, and that it was his duty to inspect them, as he was the superior in command of the press room, and all the men understood it in that way. He further testified that the machine was supposed to stop at the top, and was not all right unless it did, and that it was a part of his duty to make the machine work so that it would stop at the top, if possible; that he took the machine apart a dozen times for the purpose of examining it; took the clutch apart; took the clutch pin out; cleaned them off tó see if they were cut, and put the machine together again; that he had the machine apart two or three months before the injury to plaintiff, and that it was all right at that time. It appears that there was no way of ascertaining whether the clutch pin was cut, without taking the machine apart, and that this could be done in 20 minutes or half an hour. The plaintiff testified, further, that on Monday, when he went to work on the machine, he asked Mr. Ross if there was any danger of the machine dropping when it once got up, and he said, “No;” that it did not drop that afternoon; that on Tuesday morning, after Ross oiled the machine, he asked him again if the machine was all right, and he said, “Yes;” that about 20 minutes after that, while he was lifting out a stove top in the usual way, with the iron to hold up the edge, and with his fingers to pull it out, the top die suddenly dropped, catching his hand, cutting off three fingers and injuring the other; that his foot was not near the treadle at this time; and that he did nothing to cause it to fall. After the accident, the machine was taken apart, and it was found that the clutch pin was cut.

At the conclusion of the testimony, counsel asked the court to direct the verdict for the defendant, for the following reasons:

“First. Because it appears by the undisputed evidence in the case that the machine was a good one, and proper and suitable for, the purposes for which it was used, and it does not appear that the machine was out of repair at the time of the accident.

‘ ‘ Second. Because it does not appear that the machine was improperly adjusted at the time of the accident.

“ Third. Because it does not appear that the defendant had any knowledge that this machine was out of repair or improperly adjusted, if it was; neither does it appear that there was any negligence on defendant’s part in inspecting, or providing for a proper inspection of, the machine.

“Fourth. Because it appears beyond dispute that the machine was a proper one, adapted to the purposes for which it was used, and the defendant had provided reasonably for the inspection and repair of the machine.

“Fifth. Because it appears from the undisputed evidence in the case that, from the mechanism of the machine, it was as likely the accident occurred by reason of such mechanism in its natural operation as through any want of repair or adjustment, and the verdict of the jury would only be a matter of guesswork.

“Sixth. That when he commenced and while operating the machine, up to the time of the injury, the plaintiff had knowledge of the alleged defective operation of such machine, and by continuing the employment he assumed the risk of injury resulting from such defective operation; that he could not relieve himself from the assumption of such risk by showing statements claimed to have been made by the foreman to him before the accident.

“Seventh. Because it appears by the undisputed evidence in the case that the plaintiff was guilty of contributory negligence in removing the stove top from the press.”

The court refused to give these instructions, but instructed the jury as will be found in the statement.

It is contended by counsel for defendant that negligence cannot be inferred from mere proof of the accident and consequent injury; citing Toomey v. Steel Works, 89 Mich. 249; Robinson v. Charles Wright & Co., 94 Mich. 283; Perry v. Railroad Co., 108 Mich. 130; Shadford v. Railway Co., 111 Mich. 390. There is no doubt that the rule contended for by defendant’s counsel is well settled by the cases cited, but the principle is not applicable to the present case. In the Perry Case, as said by coupsel for plaintiff, it was held that it did not appear but that the draught rigging might have been broken by the ■ impact of the cars at the time of the coupling. Here the press was continually making trouble, and, when examined, it was found upon two occasions, at least, that the trouble was in the clutch pin. The claim is that it was the cutting of the clutch pin which caused the press to drop, not that it was the dropping of the press that caused the clutch pin to be cut. There was testimony in the case from which the jury might find that the cutting of this pin caused the injury. Mr. Ross, the foreman, testified that the first time the machine ran away he found that the pin was burred up, and on the last occasion he found the same thing, only not so bad; that he thought it was done by grit getting in both times. There was testimony showing that the clutch pin might cut in a short time, or it might take some length of time to cut. It was for the jury to say whether the clutch pin was not gradually cutting, and whether proper inspection would not have prevented the injury. In the case of Redmond v. Limber Co., 96 Mich. 545, it was held that the mere fact that a machine, which was shown .to have performed its accustomed work properly both before and after the accident, failed so to work on that particular occasion, was not sufficient to justify the conclusion of negligence. This was but the reiteration of a familiar principle confined to that class of cases, as there was no evidence tending to show that the machinery was out of repair, unless it should be assumed from the alleged fact that it did not stop when the lever was released. It was there said:

‘ ‘ If there were anything to show that the machine had been out of order, and that its working was spasmodic or uncertain, there might be room for the contention that defendant was negligent in not keeping it in repair.”

In the present case there was abundance of evidence tending to show that the clutch mechanism was out of repair; that both before and after the injury the press was not in good working order, and that its action was spasmodic and uncertain. The other presses in use were working in good order, but this particular one was constantly giving trouble, and, as some of the witnesses say, “it gave more trouble than’all the other presses together.”

It is next contended that the court should have directed the verdict for defendant on the ground of contributory negligence on the part of plaintiff. The plaintiff’s testimony showed that he was performing the work in accordance with the usual custom, and as he had been instructed by defendant’s foreman. That question was fairly submitted to the jury in the general charge.

The question of proper inspection of the machine by the defendant was also properly submitted to the jury. That charge will be found in the statement. It treats this subject very fully and fairly, so that the jury could not have been misled as to the duty which defendant owed to its employés. The defendant’s rights were as fully protected as it was entitled to under the circumstances.

It is contended, further, that the court was in error in its charge on the question of plaintiff’s release from the assumed risk by what was said to him by the foreman on the Monday and Tuesday prior to the injury. It appears that the clutch mechanism was the source of all the trouble with the machine. That mechanism was wholly concealed within the machine. It could not be seen without taking the machine apart. So far as appears by the record, the plaintiff — an ordinary workman — had not seen this mechanism, and was not familiar with its working. The foreman was an expert, and familiar with the mechanism, and was expressly charged by the defendant with the duty of inspecting and repairing. Under these circumstances, the plaintiff had the right to rely upon this superior knowledge of the foreman, and it became a question for the jury to determine whether he went to work, and so continued, upon the assurance of Mr. Ross that the press would not drop; that it was all right. The cases holding that the operator assumes the risk of obvious dangers have no application here. It is not negligence for an employe, who is in doubt about the safety of the place where he is sent to work, to defer to the opinions and assurances of those who are supposed to know, and who, from their positions, are bound to have special knowledge as to whether it is safe or not. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423). This principle is abundantly supported by the authorities. Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Burgess v. Ore Co., 165 Mass. 71; McKee v. Tourtetlotte, 167 Mass. 69; Northern Pacific R. Co. v. Babcock, 154 U. S. 190; Haas v. Batch, 6 C. C. A. 201, 56 Fed. 984. In the present case it appears further, from the testimony of the foreman himself, that the plaintiff “would have been warranted in going to work on the machine, supposing it was in repair.”

The charge of the court is so full and fair upon all these questions, it becomes unnecessary to discuss them further.

The judgment must be affirmed.

The other Justices concurred.