66 W. Va. 266 | W. Va. | 1909
Opha Sowards was in tbe employ of The American Car & Foundry Company, He was one of those operating a drill press, and his arm being broken while at work, he sued the company for damages and recovered $2,000, and the company brought the case to this Court. Upon the surface or table of this machine, the drill presser, are laid pieces of iron for the purpose of drilling holes in them. This is done by upright drills with boring or drilling bits fastened in the drills. These drills revolve. The bits are held fast in place by means of setscrews screwed into the shanks of the drills. At one end of the drill presser were two drills. These two drills, by mere griess or estimate evidence, are six to eight inches apart, but by actual reliable measurement fifteen inches. Sowards says he would “judge about six or eight inches apart. Maybe a little further. I wouldn’t say.” The set-screws protrude from the drills, and the two in these two drills at the end of the table of the drill press, to the right of the operator, take up about two inches leaving balance of the fifteen inch space clear. At the other end of the table were two like drills, the space between the second of the other two drills at the right hand end of the table and the third drill nine feet along the table and four up and down. Behind the drills were pipes leading to the bits, with stop-cocks, above the bits, used for letting water into the iron where the bits worked, for the purpose of cooling the bits as they would become heated from friction. These stop or water cocks were to the left of the drills, more handy to the operator’s left hand. Sowards reached around the second bit with his right hand to open a stop-cock to let water to the bit, and in so doing his sleeve was caught by the nut or head of the set-screw in the second bit, and his arm was broken. Sowards had been working for the company a considerable time, but at -this particular work only a week. He worked in the day, others at night, at this machine. At night the set-screw in the second drill broke, and the hands procured another one and fastened it in the drill in place of the broken one. Sowards resumed work at seven o’clock next
Upon a demurrer criticism of the declaration is made;, but counsel do not specify its defects. I think it questionable in the respect that it does not distinctly aver that Sowards’ arm was broken from or because of the set-screw; it does not say how or from what the hurt came, except inferentially. It is likely bad for this.
The defendant was refused an instruction to find for it. Under this instruction we must decide the merits by the evidence. Is it possible that the change of a set-screw of the small increased length of one-fourth inch can fix negligence upon the defendant and put heavy damages upon it? We must- be able to. fix negligence upon the company. We held in Newhouse v. Railroad Co., 62 W. Va. 562, that “generally, as between master and servant, negligence will not be imputed from the circumstance alone ‘ of injury due to defective machinery or appliances, but some affirmative acts of negligence, either of omis
We are of opinion that the use of the set-screw doing the damage did not call for a verdict, and that the court should have directed a verdict for the defendant, and should have sustained the motion to set aside the verdict. The plaintiff showed no cause of action under the law.
We may supplement this position by another feature of the case calling for a verdict for'the defendant. Above I have gone
And then the law is that a reasonable time for repair is allowed after notice. 20 Am. & Eng. Ency. L. 94; 26 Cyc. 1141. The defendant had no notice of state of things. The change was made at night and only a few hours before.
Again we may say that Sowards is chargeable with contributory negligence. He must have been careless in passing his arm between the drills, and letting his sleeve be caught, as with care he could have safely passed his arm in a space of fifteen inches. But the easier and more ready way was to pass his hand to the left of the second drill in the space of nine feet by four, instead of running the risk of passing his arm between the first and second drills. This would have been free of danger. All authorities say that a workman must exercise great care in operating dangerous machinery. It is always attended by danger, which calls for prudence and caution.
The entire court is of opinion that the evidence shows no cause of action, and if instead of an instruction to find for the defendant there had been a demurrer to evidence, all would unite in giving final judgment for the defendant. Judge Miller and I would do so to end litigation, as the case is, but the majority think otherwise. We think that cases wherein the matter has been pointedly decided would justify final judgment.
' Therefore, we reverse the judgment, set aside'the verdict and remand the case to the circuit court for a new trial.
Reversed.