Bohn Mfg. Co. v. Erickson

• Decision Date: 01 May 1893
• Docket Number: 194.
• Citation: 55 F. 943
• Parties: BOHN MANUF'G CO. v. ERICKSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

55 F. 943

BOHN MANUF'G CO. v. ERICKSON et al.

No. 194.

United States Court of Appeals, Eighth Circuit.

May 1, 1893

Statement by SANBORN, Circuit Judge:

Ernest Erickson, who was a minor, and the plaintiff below, brought an action by his guardian ad litem for a personal injury, and recovered a judgment of $5,000 against the Bohn Manufacturing Company, the plaintiff in error, a corporation engaged in the manufacture of sash, doors, and blinds, and it is to reverse this judgment that this writ of error was sued out.

On September 16, 1890, three of the fingers and a portion of the plaintiff's left hand were so badly cut by the revolving knives of the defendant's relishing machine that it became necessary to remove them. The knife head of this relishing machine had two sharp knives bolted to it, and projecting about two inches, that made about 3,000 revolutions a minute when in operation. They were driven by steam, and were used for shaping the shoulders of tenons. The plaintiff was a Swede boy, 15 years old, who came to this country in December, 1889. About the 1st of May, 1890, he was employed to sweep the floors in a large factory of the defendant, where there were many machines driven by steam. About a week later he was put at work on a pinning machine. About two months later the foreman took him to the relishing machine, took rails and worked with it, and thus by example instructed the plaintiff how to operate it. The plaintiff then operated it, and continued to do so from that time until he was hurt. There was not sufficient work to occupy this machine all day each day, but a small portion of each day was sufficient to do the work upon it, and the plaintiff worked on the pinning machine when there was no work for the relishing machine. He testified that he worked on it about three days altogether before he was hurt. While the machine was running one day, the foreman brushed the shavings away from the machine with his hands, and thus by example instructed the plaintiff how to do so. The plaintiff testified that he did not understand the English language and that he received no instructions that he understood other than the examples furnished him by the foreman. He testified that he was hurt while brushing away the shavings. No one but the plaintiff saw the injury inflicted. The plaintiff, in his complaint, alleged the jurisdictional facts, his age, his ignorance of the English language, his inexperience in the use and risks of machinery, and his employment to sweep floors. He then alleged generally the duty of defendant to explain to him the dangers of any machinery it placed him at work upon, and how to avoid such dangers; that the defendant, on the 16th day of September 1890, carelessly put the plaintiff at work at the relishing machine; that this was a dangerous machine; that the plaintiff did not appreciate its dangers on account of his youth and inexperience; that the defendant failed to explain them, or to instruct him how to avoid them; and then, without any allegation of any specific danger or hazard connected with the operation of the machine, except that referred to in the following quotations, proceeded thus: 'But that, on the contrary, the defendant then and there carelessly and negligently directed plaintiff to clean off with his hands, while working said machine, the shavings congregating on the table of said machine, near the place where said knives on said machine were revolving at a great and dangerous speed; that so to clean off said shavings with the hands was extremely dangerous, for the reason that the rapid revolution of said knives created a strong suction towards the place where said knives were revolving, by which the hand of any person placed within the force of said suction was liable to be drawn into and under said knives with such force and violence that it would be extremely difficult, if not impossible, to withdraw the same before the hand had been cut and lacerated by said knives, of all of which the said defendant was then and there well aware, but of which plaintiff was, by reason of his youth and inexperience, to defendant's knowledge, wholly unaware; that on said 16th day of September, 1890, while plaintiff was discharging the duties of his service, to which he was by the defendant wrongfully set on said relishing machine, and while he, as he was by defendant directed, was with his left hand sweeping away the shavings accumulating on said table, near said knives, without any fault or negligence on his part, and solely by reason of the carelessness and negligence of defendant, the fingers of his said left hand were, by said powerful suction, drawn towards and under said knives, revolving with great speed as aforesaid, and the three last fingers of his left hand and about one-half of the balance of his said left hand were then and there and thereby wholly cut off, and his left hand and the bones, muscles, tissues and nerves of the said left hand then and there terribly cut, fractured, bruised, and lacerated;' and that, by reason of the premises, he was damaged in the sum of $10,000.

The defendant, by its answer, denied any knowledge of the manner in which the accident happened, and any negligence on its part, and alleged that the plaintiff was fully aware of all the risks and dangers of the relishing machine, and that the injury resulted from his own carelessness.

There was an irreconcilable conflict of testimony over the question whether or not the rapidly revolving knives created any suction that would draw articles towards the place where they were revolving. Eight witnesses testified upon this question. Plaintiff's witnesses testified that such a suction was created, defendant's that it was not, but that the effect of the revolving knives was to create currents of air that blew articles away from the knives. The plaintiff testified that the knives were two inches long, that he knew they went around and cut out the wood, and so he was careful when he was cleaning and when he was cutting so as not to get his hands near there, but that he did not know of any draw or any suction there, and that while he was brushing away the shavings his hand was sucked and drawn into the knives. He testified in another place that his coat was first caught and drew his hand in.

The defendant requested the court to charge the jury as follows: 'The plaintiff claims that the defendant did wrong and was negligent in not telling him, the plaintiff, that the knives might suck his hands into them, whereby he might get cut. He admits by his own evidence that he knew the knives would cut him if he got in their way. So if you find by the evidence that there was no suction at all about this machine, which would draw the hand of the plaintiff into the knives, then the defendant was not negligent, and the plaintiff cannot recover.'

The court refused to give this instruction, and delivered a general charge, which occupies seven pages and a half of the printed transcript, in which the issue over the existence of this suction, the latent danger from it, and the effect of the jury's finding upon that issue, is no where referred to. The refusal to give this request is one of the errors assigned.

Charles G. Lawrence, (Harris Richardson, on the brief,) for plaintiff in error.

John W. Arctander, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District judge.

SANBORN Circuit Judge, (after stating the facts.)

It is the general rule that a servant assumes the ordinary risks and dangers to him, and so far as they would have been known to one of age, experience, and capacity by the use of ordinary care. He does not...