Barr v. Guelph Patent Case Co.

• Decision Date: 07 January 1902
• Citation: 129 Mich. 278,88 N.W. 640
• Court: Michigan Supreme Court
• Parties: BARR v. GUELPH PATENT CASE CO.

88 N.W. 640

129 Mich. 278

BARR v. GUELPH PATENT CASE CO.

Supreme Court of Michigan

January 7, 1902

Error to circuit court, Benzie county; Clyde C. Chittenden, Judge.

Action by Emma Barr, as administratrix of the estate of Daniel Barr deceased, against the Guelph Patent Case Company. From a judgment in favor of the defendant, the plaintiff brings error. Reversed.

Charles A. Withey (D. G. F. Warner, of counsel) for appellant.

Breenan Donnelly & Van De Mark, and Henry L. Lyster, for appellee.

MOORE J.

The plaintiff is the widow and administratrix of the estate of Daniel Barr, who was killed while at work for the defendant in the basement of its sawmill. The negligence counted upon in the declaration is: '(a) Failing to provide a place reasonably light and safe for deceased to work in, and to safely and properly place its machinery; (b) taking deceased from his work piling lumber in defendant's yard (he being, to the knowledge of the defendant, wholly inexperienced in the use and care of machinery) without warning him of the dangers incident to the new duties assigned to him; (c) especially in not warning deceased of the dangerous character of the place in question, and of the projecting set screw; (d) in neglecting to remove or readjust said set screw so that it would not dangerously project; (e) in neglecting to warn deceased or point out to him any other or better way (if there was any) to reach the bearings south of the place where the set screw was than to go over and upon the timber next which it revolved; (f) in not telling the deceased of the fact or custom (if it was a fact or custom) that it was not necessary or customary to oil the said bearings south of the said set screw when the mill was in motion; (g) that defendant was guilty of gross carelessness and wanton neglect of duty and the safety of others in not covering said set-screw and bearings.' Mr. Barr was upwards of 30 years of age, and a man of fair intelligence. It is the claim of plaintiff that before the injury Mr. Barr had not been engaged in the use of machinery of any kind, and had never oiled any machinery until one to four days before his death; that he was set to work in the basement of a mill more than 100 feet square, not well lighted; that his duties were to wheel the refuse and sawdust coming from the trimmer saws to the furnace room, and to oil such machinery as should need oiling. In the basement of the mill was a shaft about seven feet long, which was raised about two feet four inches above the floor. The ends of this shaft run in boxes which were fastened to the upper side of timbers which were eight inches square. On the west end of the shaft next the timber was a thirteen-inch pulley. Nearly three feet east of that pulley was another, four feet in diameter, which carried a belt running to the south, about twenty inches east of the larger pulley and next to the east timber, which carried the box in which the end of the shaft run. There was a collar on the shaft, which was held in place by a set screw, which projected about two inches, according to the evidence of the plaintiff. Directly north of this shaft, and two or three inches from the outer rim of the large pulley there was a plank three inches thick and ten inches wide, fastened to the top of the two timbers which carried the collars in which the shaft run. About four feet south of the collar with the set screw, there was another shaft running parallel with the one already described. On the end of this shaft, directly south of the set screw, was a twenty-four inch pulley, called a 'clutch pulley,' twenty-four inches in diameter. The west end of this shaft ran in a box near the clutch pulley. This box rested on a timber eight inches square. East of the set screw three or four feet there was also machinery. The shaft carrying the collar and set screw made one hundred and fifty revolutions a minute, and it is claimed by plaintiff that the set screw could not be observed when the shaft was revolving, and that Mr. Barr had no knowledge of its existence, and while in the discharge of his duty to oil the machinery his clothing caught in the set screw, was nearly all torn from his body, and Mr. Barr was found, when they searched for him, under the shaft, dead. The plaintiff introduced testimony to establish the case stated in the declaration. She then called a witness by the name of Elliot, who was a filer, and the millwright who put into the mill the shaft with the collar and set screw. It may be well to state here that the shaft with the set screw and collar had been run only eleven days when the accident occurred. Mr. Elliot, among other things, testified as follows: 'Q. Could you see it (set screw) when it was running? A. Yes, sir. Q. How much did it project from the shoulder? A. I do not know; it might have projected two inches or an inch and a half. Q. Now it was Barr's duty to do all the oiling under the mill,--all that was necessary to be done, was it? A. No; the night watch done the general oiling once a day, and he oiled this fast running machinery that had to be oiled oftener.

Q. Did you show him just what he had to oil? A. Yes; I showed him just what he had to do. Q. Did you call his attention to this shaft and set screw? A. No, sir; I did not show him anything only what he had to do. Q. When did you inform him as to what machinery to oil? A. The first morning he was sent there. Q. He was the general oiler under there? A. No, sir. * * * I never at any time instructed him to oil this machinery in the rear of this large pulley, or to oil the bearing of this large pulley itself. * * * I went with him and saw that he did it properly; saw him do it several times; I refer to the machinery I told him to oil.' It is claimed the machinery which Mr. Elliot told him to oil was not nearer than 3 1/2 feet from the set screw. The judge was asked by the defendant to take the case from the jury. The court expressed himself as follows: 'The plaintiff placed Mr. James Elliot on the stand, and, while the plaintiff's attorney had intimated that his testimony might not be truthful, yet there is nothing before the court to cause it to doubt his testimony. He was the man that gave the deceased his instructions to do his work. These were the only instructions that he had. He was told how to do and what to do. The theory of the plaintiff is that he went round and climbed up on this three by ten plank, and this eight by eight, and leaned over to oil this shaft or bearing. This was contrary to his instructions, and outside of his duty. Therefore the deceased was negligent, and if he was negligent in that regard the plaintiff cannot recover. It would not be reasonable in this case to say that Mr. Elliot ought to have told him that he must not climb over the piston rod when he went to oil the engine, because it was no part of his duty. There is no testimony here as to the duties of this man except the testimony of Mr. Elliot. It was assumed by the plaintiff when they started in with the trial of this case that Mr. Barr was the oiler in the mill. That was...