104 Mich. 295 | Mich. | 1895
The ■ defendants own ■ and operate a pulp mill. One of the' machines used is called the “double •cutter,” consisting of a. frame or table 4 feet high, 9 feet long, and 4 feet wide, the saw, the carriage, and the gearing. The frame is of solid wrought iron, with strong posts at the corners, and a rectangular opening at the top, ever the saw. The saw is placed horizontally in the frame, .and 10 inches below the top. The circular saw is 40 inches in diameter,' and revolves on a fixed pivot in the center. In operating the machine, the carriage, which is .above the saw, moves towards and from the saw alternately. At each end of the carriage is a clamp, or V-¡shaped piece of iron, holding the bolts of wood to be ■sawed. The bolts are. 2 feet long and from 4 to 8 inches in diameter.. The saw at.each, cut takes off about 1 inch from the lower end of the bolt, the pieces dropping down through an opening in the floor directly under the saw, ’into an elevator, by which' they are carried to another room. The front side of the frame, where the operator
On November 10, 1891, the defendants, having broken the saw, and having no new one to put in, took a saw, which had a crack in it two or three inches long, to a foundry, had it riveted, and placed in the machine for
The conflict of evidence was upon the following points:
1. Plaintiff's testimony tended to show that when the saws broke pieces flew around the room. Defendants* testimony tended' to show that it was impossible for pieces to fly out, on account of the guard.
2. Plaintiff claims that he was struck by a piece of the saw, while defendants claim that when the saw broke, which made a great noise, the plaintiff, in stepping or running back or to his right, fell over the tub standing-near him.
3. One witness testified that he picked up a piece of the saw near where the plaintiff stood. Defendants insisted that the only way in which such piece could escape was by.dropping down under the frame, striking upon the side of the opening to the elevator, and bounding out upon the floor, in which case it could do no harm. The frame was open just above the floor, and the only way to see the saw was by stooping down and looking up under the table, or by standing up above the frame and looking down upon it.
4. Plaintiff's testimony tended to show that the protection at the right end of the cutter was a board an inch thick, while defendants* testimony showed it to be a plank l-£ to 2 inches thick.
5. There was also a conflict of evidence on the question whether the saw was suitable and safe for use.
The case was submitted to the jury under the charge of the court, and a verdict rendered for the defendants.
“The question for you to determine in this case is, was-this saw at the time a safe and proper saw to be used in the connection in which it was then being used? Was it-such a saw as men of ordinary prudence and care and caution would have used under like circumstances?”
The verdict and judgment must stand, unless, as the-plaintiff contends, the court should have directed a verdict-for the plaintiff, leaving to the jury only the question of damages. It is unnecessary to discuss this question under the conflicting evidence as above stated. If the-jury believed the evidence on the part of the defendants, the plaintiff was not struck by a piece of the saw. One-of the plaintiff’s own witnesses testified that the pieces of the saw could not escape from the table without tearing through the board or plank protection at the end. No-witness on the part of the plaintiff testified that the protection was torn off or broken. Neither can it be said as a matter of law that it was negligence to use the-mended saV. It had done the work for a month, and there is no evidence tending to show that it was weaker at the mended point than at any other, or that it broke-at that point, or in consequence of the crack in its mended condition. Witnesses for the plaintiff testified positively
Judgment affirmed.