113 Va. 485 | Va. | 1912
delivered the opinion of the court.
In this action damages were awarded the defendant in error, Chalkley (plaintiff below), against the American Locomotive
On the occasion of the accident Chalkley had started the drill-press, but, discovering that the bit or drill in the “chuck” was bent, and useless, he stopped the machine in the usual way, for the purpose of replacing the defective drill with a new one. He had inserted the new drill in the “chuck,” and was tightening it with a hammer, when the machine suddenly started, causing the spindle to rapidly revolve, and the drill to strike against the hammer with great force, by means of which a scale or piece of metal was broken off and penetrated the plaintiff’s left eye, putting it out.
The specific ground of negligence, upon which the plaintiff bases his right of recovery, is that the drill-press was out of repair, and in a dangerous condition, of which condition the defendants had actual notice. This notice was sought to be brought home to the defendants by the testimony of an employee named Pierotti, who operated the drill-press several weeks before the plaintiff entered the employment of the defendants. This witness testified that on several occasions the machine “started up on him,” and he reported the fact to the night foreman. But it appeared that the last trouble that Pierotti had with the drill-press occurred at least two weeks before Chalkley entered the service of the defendants, and two and a half weeks before he was
■' In these circumstances it is not possible to ascribe to the defendants want of ordinary care in not discovering the alleged defects, to the existence of which the accident is proximately attributed. Besides, there was other evidence adduced on- behalf of the plaintiff -which is fatal to his right to recover-.
H. C. Chalkley, a brother of the plaintiff, testified that soon after the plaintiff was injured he examined the overhead shafting and belting, to discover, if possible, and correct the defect which caused the accident; that in rendering this service he was acting under the orders of a man whom he took to be the foreman of the defendants. His inspection disclosed that the hanger under the loose pulley had dropped down at one end about three-fourths of an inch, the threads of the bolt were worn, and the tap had worked loose and dropped down, which threw the counter-shaft out of parallel with the main shaft. The inevitable result of this condition was to cause the belt (following the line of least resistance) to run up the counter-shaft on the tight pulley and start the machine. This the witness said would happen in half a minute, and the machine would “keep driving.”
° Assuming, as we must assume, the truth of this statement, it demonstrates that the defect which caused the accident developed in the brief space of time which elapsed after the plaintiff stopped the machine to insert a new drill in the “chuck ” and the sudden starting of the machine which caused the accident. The plaintiff, therefore, wholly fails to show that the defendants either knew of the defect in question or could, in the exercise of ordinary care, have discovered it in time to prevent the injury.
The principle is well settled that to render a master liable for injuries to a servant from defects in machinery or appliances, it must be shown that the master knew of the defects, or, in the exercise of due care, ought to have known of them. Va. & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976; Cabin Branch Mining Co. v. Hutchinson’s Adm’x, 112 Va. 37, 70 S. E. 480,
The tendency of such a custom, if allowed to prevail, would contravene the rule of law which imposes upon the master the duty of exercising reasonable care to inspect machinery and appliances. Hence there was no error in excluding this evidence.
Upon the main assignment of error the judgment must be reversed and the case remanded for a new trial.
Reversed.