187 Mich. 505 | Mich. | 1915
The plaintiff was injured on September 28, 1909, while operating a rotary veneer peeler at the defendant’s factory in Grand Haven. He is a son of the president and general manager of the defendant corporation, and had worked for the defendant about five years.
During the operation of the machine it sometimes became necessary for the operator to adjust certain parts of the machine while it was running, notably the “pressure bar,” so called, to obtain veneer of a uniform thickness. These parts which were adjusted while the machine was in motion were at the right-hand end back of the stub shaft, and they could be reached either from the front of the machine or from the rear. To reach them from the front, to feel the edge of the veneer as it issued from the machine onto the table at the back, it was necessary for the operator to reach over the right-hand end of the revolving log and over the revolving chuck and stub shaft. The plaintiff, on the day of his injury, selected from the lot of six chucks belonging to the machine, which were lying on the floor near the machine, a pair on one of
The trial of the case resulted in a verdict for the plaintiff in the sum of $5,000, upon which judgment was duly entered. A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, being denied by the trial court, the cause is brought here by writ of error.
The following special questions were submitted to the jury at the request of counsel for the defendant, and were, together with their respective answers, returned by the jury with its general verdict:
(1) Did the plaintiff himself, -before he was injured, place upon the right-hand shaft of the machine the*509 large chuck, which at the time had one or more set screws projecting from it? Answered “Yes.”
(2) Did the State factory inspector, or his deputy, order the defendant to guard the set screw which caused plaintiff’s injury? Answered “Yes.”
(3) Was the set screw, which caused the plaintiff’s injury, placed in or upon the machine in question by the defendant? Answered “Yes.”
(4) Would a man of ordinary powers of observation, in picking up the chuck in question, or in placing it upon the shaft, or in starting the shaft revolving under the same circumstances as surrounded the plaintiff, have seen the set screw? Answered “No.”
The questions which are raised on this appeal are thus stated by counsel for appellant in his brief:
(1) The injuries complained of were not proximately caused by any act or omission on the part of the defendant.
(2) There is no room for the application to this case of the statute relied on by the plaintiff, requiring set screws to be guarded in certain cases; consequently the plaintiff assumed the risk.
(3) The plaintiff was guilty of contributory negligence, as a matter of law.
(4) The verdict was against the weight of the evidence, and the motion for a new trial, based on that ground, should have been granted.
It appears that the chuck which' was used on the occasion of the accident was the only chuck among, the six which were used in connection with this machine which had the set screws projecting, and the negligence here relied upon to sustain the plaintiff’s cause of action is the failure of the defendant to perform its statutory duty to properly guard the exposed set screws. It appears also that these different sizes of chucks were used, depending upon the condition of the end of the bolt, and, if it happened to be shaky or hollow, a larger set of chucks was used. The plaintiff testified that he did not see the projecting set screws on the chuck in question before he placed it on the shaft; that he sup
It is urged that the plaintiff’s act in selecting the chuck in question and placing it on the machine was an independent cause of the accident, intervening between the act of the defendant in permitting the set screws to exist in said chuck, and the accident. It may be conceded that it was the duty of the plaintiff to use the proper sized chuck for the work in hand, but it does not appear that he did not use the proper chuck suitable for the work he was then engaged in. He used the chucks furnished by the defendant for this purpose, and we can see no merit in the contention that the defendant’s negligence, if any there was, was not the proximate and direct cause of the accident. He used the appliances furnished him by the defendant, and had a right to assume that the appliances so furnished him were reasonably safe and fit for the purposes for which they were intended.
We cannot agree with the contention of counsel that the statute (section 15 of Act No. 285, Pub. Acts 1909), which reads as follows:
"All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector”
—does not apply in this case. The question of whether or not the set screws on this chuck were to be guarded under the order of the factory inspector was left to the jury as a question of fact. These chucks were part of the machinery, and it was necessary to have different
Being satisfied that the jury was warranted in finding a violation of the statutory duty, it follows that the servant did not assume the risk, under the well-established doctrine in this State. Wallin v. Railway Co., 172 Mich. 466, and cases cited on page 473 (138 N. W. 270).
Neither are we of the opinion that it can be said that the plaintiff should be’ held guilty of contributory negligence, as a matter of law. It is urged that he should be held guilty of such negligence because of his failure to observe the set screws, because of his blind selection of the chuck-bearing set screws, and because of placing his body where he did place it just before he was hurt, and because of his choice of the more dangerous of two available methods of doing the work at hand. The chuck in question was produced at the argument in this court, and, from the demonstration there made, it would seem possible that, if the set screws happened to be on the lower side of the chuck while it was lying on the floor, the plaintiff might have picked the chuck up and placed it on the stub shaft without having seen the set screws. It further appears, and it is undisputed, that the larger sized chucks were rarely used, and the plaintiff testified that he had never seen projecting set screws on any of the chucks. As soon as the bolt was placed on the machine and the power turned on, the plaintiff’s attention might have been directed to other parts of the machine, especially to the testing of the veneer and adjusting the pressure bar. We do not think that the plaintiff’s contributory negligence is so clearly established, under the facts of this case, that we can decide it, as a matter of law, and we are therefore of the opinion that the question was properly submitted to the jury. Roberts v. Food Co., 142 Mich. 589 (106 N. W. 68); Swick v.
No reversible error being made to appear, the judgment should be, and it is therefore, affirmed.
