Atz v. Newark Lime & Cement Manuf'g Co.

• Decision Date: 04 June 1896
• Citation: 34 A. 980,59 N.J.L. 41
• Parties: ATZ v. NEWARK LIME & CEMENT MANUF'G CO.
• Court: New Jersey Supreme Court

34 A. 980

59 N.J.L. 41

ATZ

v. NEWARK LIME & CEMENT MANUF'G CO.

Supreme Court of New Jersey.

June 4, 1896.

(Syllabus by the Court.)

Action by Louis Atz against the Newark Lime & Cement Manufacturing Company. Verdict for plaintiff. Rule to show cause why a new trial should not be granted. Rule made absolute.

Plaintiff's intestate was in the employ of the defendant, a company engaged in the manufacture of cement. On May 5, 1892, defendant was using a machine for grinding broken rock, called the "Page Mill." The mill had an upper stone, which was fixed in a frame of hard wood, and a lower stone, which revolved. The upper stone had a hole of about five inches in diameter in the center, through which the rock to be ground was fed from a hopper. In that hole was the "damsel," inserted in the lower wheel, and which, when the latter revolved, oscillated the trough leading from the hopper so as to produce a constant feed of rock. The frame in which the upper stone was fixed was hinged on one side upon a frame surrounding the lower stone. On the opposite side an iron lag bolt was inserted, having a ring attached. At intervals the grinding surfaces of the two stones required to be sharpened. To expose them for that purpose, there was a traveling block and pulleys over the mill, carrying a chain with a hook. When the hook was inserted in the ring, the frame with the upper stone was inserted in the ring; the frame with the upper stone in it was raised by the use of the pulleys to a perpendicular, and then lowered on the other side, leaving both grinding faces exposed. When sharpened, the operation was reversed, and the frame with the upper stone was let down upon the lower stone. On the day named, deceased and another workman were engaged in lowering the upper stone after sharpening, the latter managing the pulleys. When the frame was nearly in place, deceased directed the other workman to stop lowering, which he did. Thereupon the lag bolt broke, and the upper stone fell. Deceased had one arm and part of his head between the stones, and was instantly killed. The administrator of deceased brought this action to recover for the pecuniary loss to the next of kin, and obtained a verdict. This rule to show cause was allowed.

Argued February term, 1896, before BEASLEY, C. J., and DIXON, GARRISON, and MAGIE, JJ.

Robert H. McCarter, for the rule.

Samuel Kalisch, opposed.

MAGIE, J. (after stating the facts). The first question presented by this case is whether the evidence established any liability on the part of the defendant for the death of plaintiff's intestate. As the death was occasioned by the breaking of a machine furnished by defendant, as employer, to deceased, as its servant, to be used in its work, it is conceded that defendant's liability will only be established by sufficient proof of its breach of the duty which it owed deceased in respect to that machine. The rule of duty imposed on a master in this regard has so lately been enunciated in this court that it is only necessary to repeat so much of it as is applicable to this case. It is that the master must take reasonable care to have and preserve such a machine reasonably safe for the work which the servant is employed to do with it. The master does not insure the safety of the machine, nor is he bound to extraordinary or the highest diligence respecting it, but only to use such reasonable precautions as a man of ordinary prudence would use for the safety...