Casey v. Barber Asphalt Paving Co.

• Decision Date: 03 February 1913
• Docket Number: 2,161.
• Citation: Casey v. Barber Asphalt Paving Co., 202 F. 1 (9th Cir. 1913)
• Parties: CASEY v. BARBER ASPHALT PAVING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 1

CASEY v. BARBER ASPHALT PAVING CO.

No. 2,161.

United States Court of Appeals, Ninth Circuit.

February 3, 1913

Machinery assembled on a car, and moved from place to place, for the preparation of paving material, consisting of a mixer grinder, heater, rolls, and elevators for hoisting materials all operated by a gasoline engine, constituted a "factory" or "mill" within Wash. Factory ActMarch 6, 1905, as amended by Laws 1907, requiring the guarding of shafting, etc.

The plaintiff in error brought this action in the court below to recover damages for personal injuries, alleging in his complaint, among other things, that on the 6th day of August 1909, the defendant to the action was operating a certain mill, factory, and workshop in the city of Walla Walla Wash., in the mixing, grinding, and manufacturing of asphalt paving, the plaintiff being one of its employes; that prior to and at the time mentioned the defendant negligently and in violation of its duty to the plaintiff and to its other employes, and in violation of the laws of the state of Washington, caused and permitted a certain revolving shaft and coupling which was a part of the machinery of the said mill, factory, and workshop to be left unguarded and in such a condition that the said employes, including the plaintiff, were constantly liable to come in contact with the shaft and coupling while in the performance of their duties, and negligently failed to provide reasonable or any safeguards against damage to them, although such protection could have been effectively given with all due regard to the ordinary use of the machinery; that the defendant negligently left the said machinery, shaft, and coupling in a defective and dangerous condition, with a certain cotter pin unnecessarily and dangerously projecting therefrom in such a position as to be likely to catch and injure the employes; that by reason of such negligence the plaintiff, on the day mentioned, while in the performance of his duty in and about the said mill, factory, and workshop, was caught by the said projecting pin and greatly injured.

The answer of the defendant put in issue the allegations of negligence, and set up as affirmative defenses carelessness of the plaintiff, and that the latter assumed as a part of his employment the risks and dangers incident thereto.

The evidence showed that the defendant corporation was engaged in the business of laying asphalt pavement in streets and roads, and that in the prosecution of its business it maintained and operated certain machinery for the purpose of grinding, mixing, heating, and preparing the crushed rock, sand, cement, and asphalt out of which the pavement is made; that the machinery, except the elevators, was assembled on a car about 60 feet long and about the width of an ordinary flat car, and consisted of a mixer and grinder, a heater, rolls, and elevators for hoisting the materials, all of which were operated by a large gasoline engine.There was also, according to the plaintiff's testimony, a platform on each side of the car, one of which platforms was for the employes to walk on in and about their work, and the other was for use in and about the handling of the wagons.According to the evidence, the car is moved by the defendant as its business requires on ordinary railroad tracks, and is conveyed to the particular point desired by means of a side track constructed from the main track, and the temporary track is then removed, and is replaced when the defendant desires to remove the plant to some other point.The machinery in the center of the car is not covered, but there is a tin roof over the vats and rolls.In addition to the car and its contents, and the platforms and elevators, there were, according to the testimony of the plaintiff, two sheds, built in connection with the plant, for the storage of tools and oil, and also a small office for the company in which a telephone was placed.Six or eight men were engaged in the operation of the plant at the time of the plaintiff's injury.Several photographs of the plant were introduced in evidence, and, as indicating its extent and method of operation, we extract briefly from the plaintiff's testimony:

'I now have in my hand Plaintiff's Exhibit 4.The crushed rock and sand was taken in at this end from the left end of the machine, as shown by the picture.

'Q.How was it taken in?A.It was taken in by this chain of buckets or cups, and was carried up into the rolls, the two large rolls on the left end of the machine, and there heated.

'Q.Where was it taken from?A.From the ground.

'Q.Was there a hopper there?A.Yes; there was a hopper there to place the material so the chain of buckets would catch it and carry it into the machine.

'Q.Go ahead.A.It was taken into the rolls and heated and about the center of the machine it was carried into the elevator there that you see near the smokestack.Then the asphalt was brought to the right side of this picture looking at it this way, and was put into a large vat there.This little derrick between here and the smokestack was to pull up the asphalt from the ground in barrels and put it in the vat.When in the vat they were heated and transmitted to the center of the plant in the vicinity of this elevator, where the mixer or grinder was, where the asphalt and sand or the asphalt and crushed rock, as the case might be, were ground and mixed together thoroughly.After that the material was transferred into the wagons to be hauled to the streets.

'Q.How was it put into the wagons?A.There was an elevator there that, when the vat was full and thoroughly mixed, the elevator would turn over and the bottom of the box would open and drop it into the wagons.

'Q.Now, how much of this material would be ground through there in a day about approximately?A.I do not remember the number of loads.If my recollection serves me right, I believe they made a wagon load of that material in seven minutes.I may be a little off one way or the other.

'Q.Was it operated all day?A.Yes, sir; it was started up, and, if working properly, was worked all day.It was never shut down for noon, but worked on until night.'

Upon the conclusion of the plaintiff's evidence, the defendant moved for a nonsuit, which was denied by the court, and upon the conclusion of all of the evidence the defendant requested an instruction to the jury directing a verdict in its favor, which motion was also denied by the court.

The verdict of the jury was in favor of the plaintiff for the amount sued for-- $7,500-- and costs.

Subsequently, on motion of the defendant, the court below entered judgment in its favor notwithstanding the verdict, and the case is brought here by the plaintiff by writ of error.

J. G. Thomas and W. A. Toner, both of Walla Walla, Wash., and Bennett & Sinnott, of The Dalles, Or., for plaintiff in error.

Post, Avery & Higgins, F. T. Post, and A. G. Avery, all of Spokane, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge(after stating the facts as above).

An act of the Legislature of the state of Washington approved March 6, 1905(Laws 1905, c. 84), as amended by an act passed in 1907(Laws 1907, c. 205), provides:

'That any person, firm, corporation, or association, operating a factory, mill, or workshop where machinery is used, shall provide and maintain in use * * * reasonable safe-guards for all vats, pans, trimmers, cut-off, gang edger, and other saws, planers, cogs, gearings, belting, shafting, coupling, set screws, live rollers, conveyors, mangles in laundries and machinery of other or similar description, which it is practicable to guard, and which can be effectively guarded with due regard to the ordinary use of such machinery and appliances, and the dangers to employes therefrom, and with which the employes of any such factory, mill, or workshop are liable to come in contact while in the performance of their duties. * * * '

Section 2 of the act of 1905 provides that:

'Every factory, mill, or workshop where machinery is used and manual labor exercised by the way of...