121 Mich. 115 | Mich. | 1899
This suit was brought to recover damages for injuries suffered while operating one of defendant’s
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
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
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
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.
*129 ‘ ‘ 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
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.