142 N.W. 165 | N.D. | 1913
Plaintiff and respondent sustained personal injuries while in defendant’s employ in its machine shops at Devils Lake; and he brought this action to recover damages therefor, alleging that such injuries were occasioned by the negligence of the defendant in failing to provide suitable machinery and tools for doing the work in which plaintiff was engaged. He recovered judgment in the court below in the sum of $1,400, and costs. Thereafter defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied and the appeal is both from the order and from the judgment.
The statement of facts made in the brief of respondent is, in the main, correct, and such statement is substantially as follows:
“Plaintiff was engaged as a machinist’s helper by defendant company at its shops in Devils Lake. At the time of receiving the injury to his foot he was acting as a helper to Carl Lund, a machinist, and was under Lund’s control and authority. They were working at an air press, engaged in pressing a bushing into a link which is a part of a locomotive. The link which fell on plaintiff’s foot weighed about 150 pounds.
The air press and its appurtenances consist of a table with an iron top or surface about 5 inches thick and 3 feet wide, and 5 feet long.
Tbe piston of tbe press has a 9-ineh stroke, and when at tbe farthest possible distance from tbe table it is 18 inches, its closest possible distance is 9 inches. When tbe air is turned on, tbe piston moves quite rapidly, but not fast enough to strike a blow. Such air press has a pressure of 14 tons. Immediately under tbe piston, in tbe face of tbe table, is a bole, wbicb is left open when pushing out bushing, etc., but when putting in bushing it must necessarily be covered with blocking or bars of iron. To use the press effectively for tbe work Lund and bis helper were doing, it was necessary to block tbe link or rocker arm upon blocks, so that tbe piston of tbe air press would reach tbe bushing in order to drive or push it in. For the purpose of tbis blocking tbe railway company furnished what is known or called “channel irons,” and such irons bad been in use for a long time prior to the accident and for a short time thereafter, at wbicb time other irons were furnished for such purpose. Tbe testimony shows that tbe flanges of these channel irons were partly broken off, and there were some pieces cracked or chipped off along tbe edges. (Such fact, however, did not render tbe same unfit for such purpose.)
Lund, tbe machinist, and Ness, bis helper, took tbis link or rocker arm to the air press, where Lund arranged tbe blocking upon which to lay such link, and be and plaintiff lifted tbe link onto tbis blocking. Ness held or steadied tbe link while Lund turned on tbe air by a valve wbicb drove tbe piston down. When tbe bushing bad gone about three quarters of tbe way into tbe bole it stopped. Tbe 14 tons’ pressure being unable to move it farther, Lund took a sledge hammer and
The air press is correctly shown by photographs which were introduced in evidence, from which we are enabled to understand the mechanism thereof much better than would be possible from a mere description of such machine. The testimony discloses that this link or rocker arm, into the end of which Lund and the plaintiff were engaged in inserting such bushing, could have been and properly should have been, entirely blocked up on such table to the proper height, instead of being held at one end by the plaintiff, but presumably plaintiff obeyed Lund’s instructions in holding the same in his hand, and it is fair to assume that the foreman of the shop, who frequently passed by such press while in operation, had knowledge of and presumably acquiesced in the method thus employed by such machinist. The testimony also discloses that the machinist was not restricted to the use of these particular channel irons for blocking purposes, but that there were numerous other suitable irons of different sizes in and about the shop which he was at liberty to select at his discretion, and the custom was for the different workmen to get whatever tools and blockings they wanted. Lund testified that the channel irons which were used were perfectly satisfactory for the purpose. The blocking which was used on the occasion in question consisted of these two channel irons, which were placed on the table over the hole and under the piston, then the end of the link containing the hole into which the bushing was to be forced was placed on top of these irons, and the bushing on top of such link over the table hole, and another flat piece of iron about 8 inches long on top of the bushing. The piston was then forced down on top of such blocking, forcing the bushing into the link about three quarters of the way when it stopped, and while plaintiff was still holding such link, Lund, as before stated, struck a glancing blow with a sledge hammer on top of such blocking, whereupon the blocking gave way and the link fell on plaintiff’s foot as above stated.
In view of our conclusion that the trial court erred in denying the motion for a directed verdict, we need notice but the one assignment of error predicated upon such ruling.
The rule which must guide us in determining whether there is any evidence sufficient to require its submission to the jury upon either of such issues is well settled. All conflicts in the evidence must be disregarded, and such evidence is to be construed most favorably to the plaintiff.
As stated by this court in Cameron v. Great Northern R. Co. 8 N. D. 124, 77 N. W. 1016, 5 Am. Neg. Rep. 454, “the test is whether there is any competent evidence in the case reasonably tending to sustain the cause of action alleged; and, if the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case, it is error to withdraw the evidence from the consideration of the jury.” See also Zink v. Lahart, 16 N. D. 56, 110 N. W. 931, and Hall v. Northern P. R. Co. 16 N. D. 60, 111 N. W. 609, 14 Ann. Cas. 960.
In the light of the above rule we will first examine the evidence with reference to the alleged negligence of defendant in failing to furnish suitable blocking irons for use in operating said air press. The testimony seems to be uncontradicted that the channel irons which were used at the time of the accident are the same irons which had been used for such purpose ever since the air press was installed some two years prior to the accident, or at least for a considerable length of time. The testimony also discloses that such irons were used for some time after the accident, and then other irons were furnished for use in place of the old ones. It seems to be undisputed that the flanges oh these channel irons were broken or chipped off in many places, but it does not appear that they were for this reason unsuitable for the use to which they were put, although the witness Hann gave it as his opinion or conclusion, based on a description of the blocks, “that if the same play was in this machine at the time of the accident that they would have a number of these accidents, and an accident would almost be unavoidable no matter
There is much more testimony bearing upon this question, but it is all of like character, and we are firmly convinced, from a consideration of all such testimony, that there was no room for intelligent men to differ as to the fact that such channel irons were suitable for the use to which they were put, and that the accident cannot be attributed to any defects therein. Furthermore, we fail to see how actionable negligence' can be predicated upon the use of such channel irons, for the obvious reason that the testimony conclusively shows that both Lund and the plaintiff knew, or must have known, as much or more about the condition of such irons as the master or vice principal knew, for they were handling and using the same almost daily, and sometimes more frequently, and it is undisputed that plenty of other pieces of iron suitable for blocking were near at hand and, at their disposal. Surely under these conditions the master cannot be held liable, even though such channel irons were not the most suitable for the purpose. Ling v. St. Paul, M. & M. R. Co. 50 Minn. 160, 52 N. W. 378. See also Labatt, Mast. & S.
We are forced to the conclusion, therefore, that no recovery c.an be sustained upon this alleged ground of negligence.
This brings us to a consideration of the only other ground of negligence relied on by plaintiff; to wit, that the air press was defectively constructed. In this connection we deem it proper to state that, while the complaint alleges such fact in a general way, it is very apparent that the main act of negligence relied on is the alleged failure of defendant to furnish suitable blocking irons for use in the operation of such press. This is made quite clear from an examination of the complaint and also of the bill of particulars furnished on defendant’s demand. The portion of the complaint with reference to defendant’s alleged negligence is as follows: "That said air press was defectively constructed, and the tools a/nd irons used in connection with said air press were not the proper tools and irons for that purpose, and that said air press tools and irons were imperfectly constructed, defective and unsafe, and unfit for the purposes for which they were being used, and the same were inadequate, and that said imperfect defectiveness, inadequacy, unsafeness, and unfitness could have been discovered and known by the use and exercise by said defendant of ordinary care and diligence, and that the same were, at the time aforesaid, known to said defendant and the same were unknown to this plaintiff. . . . That the said injury was wholly without fault or negligence of this plaintiff whatsoever, and was caused on account of the defective condition of said machinery and tools as more specifically herein set out.”
And the bill of particulars thus furnished is as follows:
“You will please take notice that the following is a bill of particulars as demanded by you in the above-entitled action, that is to say, that the*584 plaintiff was injured by reason of defective construction of tools and irons used in connection with said air press, and not the proper tools and irons for that purpose, and said air-press tools and irons were imperfectly constructed, defective and unsafe, and unfit for the purposes for which they were used, and the same were inadequate, and not properly constructed, and the tools and irons used in connection with the work being performed were not proper irons for the purposes for which they were used, and that at the time of the injury they were engaged in the work of pressing bushing into a link, and that the force of power furnished by said air press was not sufficient, and that the machinist in charge of said air press, to assist said air press in driving said bushing into the link, struck some of the irons with a sledge, causing said irons to fall, and that said irons fell, one of the irons upon the foot of the plaintiff, crushing it, as alleged in the complaint; that the irons referred to above were irons used to build up the platform upon the bushing and below the piston rod, for the piston rod to rest upon to drive the bushing into the link; that said irons so used to build a platform upon said bushing extending upward for the piston rod to drive said bushing in by presssure upon said irons were not irons constructed for that purpose, but were pieces of machinery, and that said pieces of machinery were furnished by the company, and the only pieces of iron or tools furnished by the defendant for that purpose, and that said pieces of iron so placed as aforesaid, being struck by the machinist in charge by a sledge hammer as aforesaid, caused said irons and the link upon which the machinist and plaintiff were working to fall upon plaintiff’s foot from the table upon which the same were laying while said work was being done, thus crushing the foot of the plaintiff; that had there been sufficient power furnished by said air press it Avould not have been necessary for the machinist to have struck the iron as aforesaid, and had the defendant furnished proper irons, as aforesaid, for that work, the accident could have been avoided; that plaintiff was not an expert nor a machinist, and did not know of the defects or the liability of accident on account of the defects as herein stated.”
It is therefore quite apparent, as above stated, that the chief, and in fact the sole, act of negligence relied on at the time the bill of particulars was prepared and served, was the alleged failure of defendant to furnish proper irons for blocking, and it apparently did not occur
The machinist Lund, who was plaintiff’s chief witness, and who was necessarily very familiar with this press, having operated it frequently, testified as follows: “At the time of the accident there might be a little play here in these arms. I would say the play is about the same as it is now. ... I don’t mean to say there was any imperfection or defect in the machinery. The machinery was all right.” True, the latter testimony was stricken out on plaintiff’s motion, hut such ruling was manifestly erroneous. This witness, however, gave in effect the same testimony thereafter. Shortly after the accident he made and signed a written report of such accident, in which report he stated in substance that there were no defects in the machinery, tools, or appliances, and the plaintiff made a similar report, which was also introduced in evidence. Both Lund and the plaintiff swore at the trial that such reports were correct.
It would serve no useful purpose to quote at length from the testimony. It is sufficient to say that, from a careful consideration of the