136 F. 150 | 9th Cir. | 1905
The defendant in error was seriously and permanently injured while employed upon that portion of the plant of the plaintiff in error known as the “McDougall Furnaces,” and, in an action for damages therefor, was awarded by a jury $15,000, for which, with costs, he was given judgment against the plaintiff in error.
The McDougall furnaces were used for roasting ores, and were round in form, 30 feet high, and 20 feet in diameter. They were located under a shed roof built over posts extended from the ground, the roof being 60 feet above the ground. There were six furnaces in that battery, three on each side of a revolving shaft, and located 3 or 4 feet from each other. The shaft was 3 inches in diameter, 70 feet long, revolved 10 feet above the ground, and turned belts that operated the furnaces by means of pulleys affixed to it. On each side of the shaft, running parallel with it, was a timber 8x12 inches, and distant 2 feet from and 2 feet below the shaft. These timbers are designated on the drawing “A”' and “B,” respectively. TwO' timbers, each 12x12 inches, called “J” and “K” on the diagram, extended perpendicularly from the ground above the shaft, and between the timbers A and B, leaving a space between them of 2 feet. Extending from timbers J and K was a crosspiece 12x12 inches, resting upon which was a cast-iron bearing box, through which the shaft passed, and upon the shaft, immediately to the north of the bearing box, was a collar. This collar (including that of the shaft) had a diameter of 7% inches, and was attached to the shaft by set screws that projected
Testimony was given at the trial tending to show that he was not familiar with machinery, and, indeed, knew little or nothing about it. He had been in the employ of the defendant company for about four or five months, working at its Ropp furnaces, in loading cars, pushing them to the proper place, and dumping the ore into the furnaces. Work having been suspended at that place for certain repairs, the defendant in error was sent by the foreman of the mine to work at the McDougall furnaces, where one Neil Ryan was already employed. The testimony of the defendant in error was to the effect that the foreman told him to report to Ryan, and to do whatever Ryan told him, whereas the testimony of the foreman was to the effect that his instructions to the defendant in error were that he should not undertake to do anything with the belting, gearing, or other machinery, but simply to look after the furnaces. The defendant in error had
The law, in our opinion, made it the duty of the plaintiff in error to inform the defendant in error of the collar and set screws, and how to perform the dangerous task, before sending or permitting him, in the course of his employment, to undertake it. The action of the court below, both in ruling upon the motion that the jury be instructed to return a verdict for the defendant, and in its instructions, was in substantial accord with these views. And being also of the opinion that we would not be justified in holding the verdict excessive in amount, in view of the extent of the defendant’s injuries and of the evidence in the case, we must affirm the judgment.
Judgment affirmed.