Bartley v. Howell
| Decision Date | 06 February 1901 |
| Docket Number | 12,453 - (229) |
| Citation | 85 N.W. 167,82 Minn. 382 |
| Parties | FRANK BARTLEY v. ROBERT R. HOWELL and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $10,813.10 damages for personal injuries. The case was tried before Elliott, J., and a jury, which rendered a verdict in favor of plaintiff for $1,800. From an order denying a motion for judgment notwithstanding the verdict or for a new trial defendants appealed. Reversed.
Defective Machinery -- Assumption of Risk.
Held in a personal injury action, that from the testimony presented by plaintiff it clearly appeared that the defect in the machine which caused the injury, and the risks incident to its condition, were known and appreciated by plaintiff, and that he had assumed said risks.
Davis, Kellogg & Severance and Keith, Evans, Thompson & Fairchild, for appellants.
James D. Shearer and C. H. Childs, for respondent.
Plaintiff, while in the defendants' employ, and engaged in piecework in operating a machine used to force harrow teeth through strips of plank, which, when put together, composed harrow frames, lost a portion of his hand, and brought this action to recover damages. The verdict was for the plaintiff, and the present appeal is from an order wholly denying an alternative motion for judgment notwithstanding such verdict, or, in case that was denied, for a new trial.
A full description of the machine is unnecessary. Plaintiff and one McCune usually operated it together. When the loose teeth had been placed in sockets on a beam which traveled up and down, the machine being out of gear and at rest, plaintiff pressed or "tripped" with his foot a lever, which, springing out from under a clip near the floor, threw the machine in gear and into operation. The beam ascended, and drove the teeth in place. A lever was then used by McCune to throw the machine out of gear, and the beam descended to its resting place of its own weight, remaining until the machine again went into gear. To stop the beam at the most convenient place for inserting teeth, there had been attached to the shaft, about four inches above the floor and close to one of the journal boxes on the frame and in which the shaft ran, what was known as a "dog wheel," and to operate it an upright tripping lever. The dog wheel had nothing to do with putting the machine in or out of gear. Its sole purpose was, through the action of the dog lever, to stop the beam at the proper place as it fell down after the machine had been tripped out of gear. Of course, the wheel revolved with the shaft, one way as the beam went up, the other way when it dropped. Attention is now called to the fact that the shaft, the dog wheel, the dog lever fixed to the beam, and the trip or foot lever, with the clip into which it slipped, were all in plain sight of the men at work, and that whenever the lever sprung out of the clip the machine went into gear and into full operation.
The plaintiff and McCune had worked at this machine several weeks, when the dog wheel above mentioned became broken on one side, and the defendants caused it to be turned around. Its place upon the shaft was not changed, but it was brought into position so that the work which it had been doing would still be done. This change was not satisfactory; for the dog lever was too long, and the beam did not stop soon enough when descending. Defendants ordered this to be remedied, and the dog lever was removed by McCune, plaintiff being present, and taken to be altered. As McCune was going away, he suggested that one of the nuts on the journal before mentioned be loosened, that the machine might run easier, and plaintiff undertook to do this with a wrench. This brought one hand very close to the broken wheel, the lever slipped from under the clip, the machine went into gear, the shaft revolved, the broken side of the wheel caught this hand, and plaintiff received the injuries complained of.
The negligence upon defendants' part, on which plaintiff relies, is that, having full notice and knowledge, they allowed the machine to remain in a dangerous condition; the particular defect being that when a large riveting machine standing close by, was in operation, this trip or foot lever on this tooth-press machine would be jarred and shaken until, of its own motion, it would slip out from under the clip, throw the gearing into action, and start the machine. This was what occurred when the injuries were received. It was also contended that the defendants were negligent in not boxing the dog...
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