135 P. 320 | Or. | 1913
delivered the opinion of the court.
The pneumatic hammer with which the plaintiff was working may be described for the purposes of this opinion as follows: Inside a double walled tube is a steel rod called a plunger, one inch in diameter, about four inches long, and weighing about one pound. In front of this plunger is another movable part called a die, having a stem 1 3/16 inches in diameter and 2% inches in length, and a head 1% inches in diameter and in length; the whole die weighing about two pounds. The .plunger works easily in a portion of the tube slightly larger than its own diameter. The part of the tube in which the stém of the die works is somewhat larger than the chamber for the plunger. The head of the die projects beyond the muzzle of the tube. In the end of the head is a semi-spherical recess designed to fit upon the end of the rivet when the machine is in action. A spring in the form of a sleeve reaching about three quarters of the way around the tube is used for the purpose of retaining the plunger and die within the tube. The base of this spring is fashioned into a lip curving inward, which fits into a slot around the muzzle of the instrument, while the upper edge of the spring is so formed as to engage a shallow slot around the head of the die, allowing about a half-inch play of the die forward and back. The
The plaintiff’s testimony tended to show that on the occasion referred to he was operating the hammer. He laid it down and went to get a drink of water. At this juncture the foreman took up the hammer and riveted a few bolts. When he had finished he lowered the muzzle of the tool, and, owing to the weakness of the spring, the plunger and die fell out upon the floor, carrying with them the spring itself. By this time the plaintiff had returned. The foreman stooped down, resting the butt of the tool on the floor, picked up the plunger, and dropped it into place. The plaintiff about the same time took up the spring and was engaged in pressing it together so as to make it fit around the tube more closely. While the foreman was in the act of picking up the die, in some way he touched the trigger which admitted the air to the chamber.
Bearing in mind, also, that by a thoroughly established rule it is the nondelegable duty of the master to furnish the employee with reasonably safe tools with which to work, we observe that at the time the accident happened, the foreman was engaged in preparing a tool for the use of the plaintiff. For the reason stated, the instrument had become unfit for use. The recital of the weakness of the spring and the resulting dispersion of the parts of the hammer was, in a sense, matter of inducement. The situation for which the master is responsible commenced when its representative, the foreman, began to assemble the pieces so as to render the hammer available for the work in hand. In other words, the foreman was engaged at the moment in preparing for the plaintiff a suitable and