207 F. 300 | 6th Cir. | 1913
This was a suit for personal injuries, brought in the common pleas of Butler county, Ohio, and on the ground of diversity of citizenship removed to the court below. Hamel was severely injured while in the employ of the Paper Company as “back tender” of one of the machines in its factory. He received his injuries on the night of November 26, 1909. Eor the purpose of turning off the steam, Hamel attempted to reach a steam valve by stepping over a calender shaft revolving at a rate of 60 or 70 revolutions a minute, when the right leg of his trousers was caught by an exposed set-screw, which drew him astride the shaft. The company admitted by its answer that a set-screw was maintained in a coupling between the shaft and the calenders of the machine at which Hamel was working, that the set-screw was uncovered, and that it projected beyond the surface of the shafting and coupling. The defenses chiefly relied on in the answer—indeed, the only ones
By statute of Ohio (Act March 20, 1900;. 94 O. L. 42; 2 Bates’ Ann. Stat. [6th Ed.] § 4364—89c) such companies as defendant were required to'—
“take ordinary care, and make such, suitable provisions as to prevent injury to persons wko may come in contact with any such machinery, or any part thereof; and such ordinary care and such suitable provisions shall include the casing or boxing- of all shafting when operating horizontally near floors, * * * the covering, cutting off, or countersinking of * * * set-screws, and all parts of * * * shafting, or other revolving machinery, projecting unevenly from and beyond the surface of such revolving parts of such machinery. * * * ”
Violation of any of the foregoing provisions is, by the next section of the act, made a fineable offense.
It is important here to note the place within which Hamel was working at the time he discovered the necessity to turn off the steam. Accepting for this purpose the distances stated by the company’s chief witness in that behalf, Hamel was within a space running east and west about 47 inches in length by about 22 inches in width, this space being bounded as follows: On the west by the calender shaft and coupling in question; on the east by the reel shaft; on the north by the calenders and reels, the outside surfaces of which were 36 inches apart, and between which paper was passing from the calenders to the reels; on the south by the calender and reel pulleys, between which were maintained a belt and an idler, the belt traveling
Concededly the regulation of the flow of steam through this steam valve is an important feature in the manufacture of paper, and the consequent necessity of furnishing a safe way between the space mentioned and the valve is obvious. We have seen that “ordinary care,” as defined by the statute, requires the master to “make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery, or any part thereof.” The statute does more; it in terms requires the master to cover, cut off, or countersink set-screws. Considering the employé’s environment and the necessity to operate the valve, we feel bound to hold that the company was as a matter of law chargeable with knowledge that its employés would be likely to “come in contact” with this set-screw. It follows that this was such a violation of the statute as at once to warrant the instruction that the company was guilty of negligence and a denial of the two requests mentioned. \
The assignments of error touching the subject of contributory negligence, as also those concerning Hamel's choice of an unsafe way in the presence of one or more safe ways to reach the steam cock, are answered by the general charge and the verdict; for the charge fairly included the company’s requests in these respects and was as favorable as could justly be claimed. All of these requests were necessarily dependent upon Hamel’s knowledge, actual or constructive, of the exposed set-screw; and, in view of the charge, prejudicial error cannot be ascribed to the denial of any of them.
“In any action brought by an employe, * * * against his employer, * * * to recover for personal injuries, when it shall appear that the injury was caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, * * * in the manner required by any penal statute of the state, * * * the fact that such employe continued in said employment with knowledge of such omission, shall not operate as a defense¡ and in such action, if the jury find for the plaintiff, it may award such damages not exceeding (where death does not result) * * * the sum of three thousand dollars, as it may find proportioned to the pecuniary damages resulting from said injuries. * * * ”
It is to be observed that the limitation upon amount of recovery as fixed by this statute depends upon whether the employé “continued in said employment with knowledge” of his employer’s “omission.” Further, the court charged the jury:
“That if you find that the plaintiff had knowledge of the existence of the Set-screw and continued in the employment of the defendant with that knowledge, the laws of Ohio limit the amount of recovery to such sum as the jury may award as pecuniary damages; * * * and in any event under the*305 laws of Ohio, if the plaintiff knew of the existence of the set-screw and continued1 in the employment, he cannot recover more than $3,000.”
This court, speaking through the present Mr. Justice Furton, in National Fireproofing Co. v. Andrews, supra, 158 Fed. 296, 85 C. C. A. 526, touching a refusal of the court below to instruct the jury that it could not return a verdict for more than $3,000 under this statute if it found that the plaintiff knew of the projecting set-screw, said:
“First. There was not the slightest evidence that the plaintiff had continued in service after knowledge that this set-screw did project contrary to the statute. Second. The court told the jury that, if they found that Andrews knew there was a projecting set-screw there, he would have no right to recover at all. This was more than defendant asked for, and of this it cannot complain. The verdict of the jury, under such a charge, conclusively establishes, for the purpose of this assignment of error, that Andrews did not continue in the service of defendant with knowledge that the statute had, in this particular, been disregarded.”
We do not discover any decision of the Supreme Court of Ohio construing this portion of the statute. The cases of Wagon Co. v. Gawronski, 14 Ohio Cir. Ct. R. (N. S.) 449, and Fee v. Standard Tool Co., Id. 540, which were affirmed by the Supreme Court without opinions and are now relied on by the company, do not sustain its contention. In the first case the employé remained at his work with knowledge that the machine was not guarded as required by law, and the recovery was only $2,000; in the second, the Circuit Court said (page 542):
“The amount of recovery in such cases is indeed limited to $3,000 for one having knowledge of the' absence of statutory safeguards.”
For these reasons we must hold that the decision of our own court in the Andrews Case, supra, where a judgment upon a verdict of $5,000 was affirmed, rules this branch of the present case.
The motions in effect to require plaintiff to state and elect whether recovery was sought under the statute or under the common law, as well as the motions to direct a verdict for the defendant, were without merit; and the assignments must be overruled which complain of certain hypotheses under which the case was submitted to the jury— that is, instructing the jury as to the applicable law according as the jury might find certain specified facts to exist or not, because that course was seemingly necessary, and in principle not unusual. It is not 'necessary to pass upon the remaining assignments of error. We have attentively considered all of them, and have found no error.
The judgment must therefore be affirmed, with costs.