American Linseed Co. v. Heins

• Decision Date: 17 October 1905
• Docket Number: 2,059.
• Parties: AMERICAN LINSEED CO. v. HEINS.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 45

AMERICAN LINSEED CO. v. HEINS.

No. 2,059.

United States Court of Appeals, Eighth Circuit.

October 17, 1905

Defendant maintained in its mill a drum used to operate a cable which passed around it, and which was required by the statutes of the state to be boxed or guarded for the protection of workmen; but it was not so guarded. Plaintiff had worked in the immediate presence of the drum and cable for four years and knew its location and condition. In passing from one part of the mill to another, instead of passing over a platform which was comparatively safe, he undertook to jump over the drum, when his leg was caught by the cable and crushed against the drum. Held that, in view of the fact that the dangerous character of the machinery was so generally recognized as to be made a subject of legislation, and was obvious and well known to plaintiff, he was guilty of contributory negligence in unnecessarily subjecting himself to the danger, and was precluded thereby, as well as by his assumption of the risk by remaining in the employment, from recovering damages for the injury because of defendant's negligence.

James D. Armstrong, for plaintiff in error.

Humphrey Barton, for defendant in error.

This action was brought to recover damages for personal injuries and resulted in a verdict in favor of the plaintiff. The facts out of which it arose may be briefly stated as follows Plaintiff in error, the American Linseed Company, is a corporation owning and operating a mill for the manufacture of linseed oil at St. Paul, Minn. Side tracks are located adjacent to the mill, upon which cars containing grain are switched. In order, however, to place these cars at the precise point where the grain can be conveniently removed by the spouts and elevators of the mill, it is necessary to change their location from time to time. For this purpose a cable is extended from a drum in the mill about pulleys at the entrance of the mill adjoining the tracks, equipped with a hook so as to grapple with the cars. When it is desired to move a car, this hook is connected with the car coupling, and the drum is set in motion by the power used in operating the plant. The drum was about 3 1/2 feet long and 1 foot in diameter, and was so placed that its upper surface was about 2 feet above the floor. Immediately over its center a lever hung down, so that it would hit the head of a person stepping over the drum. The cable in use at the time of the accident was made of wire. It was about three-quarters of an inch in diameter and from 350 to 400 feet long. The wires of which it was composed were a little larger than a pin, and here woven together in strands. Each strand was covered with tarred hemp, and the strands were then twisted so as to form a cable. One of the witnesses, in describing the purpose for which the tarred hemp was used, said: 'Having the strands wound with tarred hemp allows friction, prevents the wires from coming together and cutting, and makes a more pliable rope of it. It prevents and secures the cable from injury, and has a tendency to keep the strands consolidated. ' The cable was purchased of Roebling & Son Company, manufacturers of established reputation, and had been in use at the time of the accident a little more than two months. Previous to the purchase of this cable an ordinary hemp cable had been used. Neither the cable nor the drum had ever been covered by any framework or other protection. The plaintiff had worked for the defendant about four years, and during nearly all that time had been in charge of the cable and drum, and was thus engaged at the time the hemp cable was replaced by the wire cable which was in use at the time of the accident. About three weeks before his injuries occurred his employment had been changed, and consisted at that time in caring for the seed, weighing it, and attending to the cleaners and separators. A Mr. Capen, who had charge of the drum and cable when the accident happened, testified that on two or three occasions, while having hold of the end of the rope in pulling it out to connect with cars, he had noticed that some of the small wires stuck through the tarred hemp and projected from one-quarter to one-half inch. He did not claim to have examined the general course of the cable, but said that he discovered these projecting wires while having hold of the end of the cable and pulling it out to grapple with the cars. No complaint or report had ever been made to the defendant on this subject. On the morning of the accident the plaintiff was standing on the south side of the mill. The drum was in almost a direct line between himself and a separator which had clogged up and was throwing grain. It was his duty to go to this separator and adjust the machinery so that it would work properly. The clogging was not an uncommon occurrence. It happened whenever a car of dirty seed followed a car of clean seed, because the clean seed fed faster than the dirty, and was remedied by regulating the feed pipe. There was nothing in the situation causing danger either to person or property. The plaintiff might have gone to the separator by passing over a platform. Instead of doing this, however, he attempted to jump over the drum, which was in operation at the time. In comparison with this way the passage over the platform was entirely safe. In attempting to jump over the drum the plaintiff's leg was caught by the rope and drawn about the drum, and so injured as to require amputation at the knee. At the close of all the evidence counsel for the defendant moved the court to direct a verdict in its favor on the following grounds: First, that from the uncontradicted evidence it appeared that the plaintiff was fully advised as to the situation and surroundings of the place at which he had stationed himself at the time he received his injuries; that said plaintiff fully realized and appreciated all the risks and dangers attendant upon being in said place and assumed the same. Second, that from the uncontradicted evidence no wires projected at the point in the cable where plaintiff was caught and, if any wires did so project from the cable, the protruding wires were not the proximate cause of the plaintiff's injuries. Third, that from the uncontradicted evidence it appeared that the injuries so received by the plaintiff were due wholly and solely to the carelessness of the plaintiff in voluntarily and unnecessarily exposing himself to the danger of having his leg caught and crushed on the drum; that where there existed a comparatively safe way and a more dangerous way known to the plaintiff, by means of which he may discharge his duties, and he selects the more dangerous way, as he did in this case, he cannot recover. This motion was denied, and the cause submitted to the jury, who returned a verdict in favor of the plaintiff in the sum of $4,500. The action of the trial judge in denying the motion was duly excepted to, and constitutes the only error assigned here which it will be necessary for us to consider.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge, after stating the facts as above, .

Upon the entire record we entertain serious doubt as to whether there is any evidence of defendant's negligence which would entitled the plaintiff to recover. The negligence assigned in the complaint is, first, that the defendant failed to cover and protect the drum and cable as required by the factory act of Minnesota, which reads as follows:

'All saws, planers, * * * drums and machinery, including belts, shafting, cables and the fly-wheels of every

...