224 F. 57 | 8th Cir. | 1915
The plaintiff below, defendant in error here, recovered a judgment upon a complaint that the defendant below, the Northern Central Coal Company, a corporation'and his employer, was negligent, in that it maintained a set screw on a collar of a shaft near a bearing which it was his duty to oil; without any guard about the set screw to protect its employés from injuries therefrom; that this negligence caused his injury by the catching of his clothing by the set screw while the shaft was rapidly revolving and while he was oiling its bearing. One of the defenses pleaded by the defendant in its answer was that, if the plaintiff was injured while oiling the bearing1 of the shaft, his own negligence directly contributed to cause, his injury, and in support of this defense it introduced testimony that it was a rule of the company, and that the plaintiff had been repeatedly instructed by his superior officer, the defendant’s superintendent, never to oil the bearing of the shaft when the latter was in motion.
The evidence at the trial was conclusive that the plaintiff had the power and duty to start and to stop the machinery; that when he was ready it was his duty and he customarily discharged that duty, to give the signal to start the machinery, and that the engineer obeyed that signal, and that the defendant had the power to stop the machinery at any time; that the shaft revolved in bearings in boxes on posts about 24 feet above the floor, and carried on each side of the bearing he was oiling when he was injured fixed sprocket wheels, which dragged chains that passed over other sprocket wheels several feet distant horizontally and several feet below the plane in which the shaft revolved. It was the custom, practice, and rule to grease these chains when in motidn with thick oil or grease as;they passed over the lower sprocket wheels, and the place where they were so greased was guarded to protect the employés from danger. In order to oil the bearing of the shaft where the injury occurred it was necessary for the plaintiff to ascend about 20 feet from the floor, and then to walk along a plank or planks, which were a foot or more wide, horizontally to the box bearing on the post, and then to pour into an oil hole therein a thin oil from the spout of an oil can. As the defendant was thus oiling this bearing, while the shaft was in -motion, his clothing on his arm was caught by the set screw on the collar of the shaft and he was injured.
The plaintiff testified that he knew of no rule and that he was never instructed not to oil the bearings on this shaft, or the machinery, other than the sprocket chains, when they were in motion, and that several times, and on the morning of the accident, he had been instructed by his superintendent to oil them while they were in motion. No other
In this state of the evidence, at the close of the trial, the defendant requested the court to charge the jury that if they found that it was the rule of the company and if the plaintiff had been instructed that he should not oil the mad finery, with which he was working at the time lie was injured, when it was in motion, and that he should oil it only when It was stationary, they should return a verdict for the defendant. The court denied this request. In its general charge the court instructed the jury that they could not find for the plaintiff, even though they found that the defendant had been guilty of negligence in failing to guard the machinery, if they should find by the preponderance of evidence that the plaintiff was guilty of some negligence on his part which contributed to the accident which caused his injury. But the court nowhere mentioned the issue over the rule of the company, or over the instructions to the plaintiff, or the defense based thereon. The refusal to give the requested instruction is assigned as error.
Let the judgment be reversed, and let the case be remanded to the court below, with instructions to grant a new trial.