Congdon v. Howe Scale Co.

Citation29 A. 253,66 Vt. 255
PartiesCONGDON v. HOWE SCALE CO.
Decision Date29 March 1894
CourtUnited States State Supreme Court of Vermont

Exceptions from Rutland county court; Ross, Judge.

Case by Charles H. Congdon against the Howe Scale Company for personal injuries caused by defendant's negligence. There was a verdict and judgment for defendant, and plaintiff excepts. Reversed.

The plaintiff was employed by the defendant in finishing small castings, in the course of which he had to use an emery wheel. The work was by the piece, and the tools and machinery were furnished by the defendant. The plaintiff was injured by the bursting of one of these emery wheels, while in the defendant's service. The evidence of the plaintiff tended to show that he found the wheel in question under the bench where he was at work, and took it to defendant's foreman, asking whether he might not use it, and being told by said foreman that he might; that in consequence he put the wheel onto the arbor, and started it, whereupon, soon after coming up to speed, it burst, striking him in the abdomen, and inflicting serious injuries; that the wheel was of an inferior grade, and only rated for 1,900 revolutions per minute, while the speed of his arbor was 2,700; and that the defendant had provided no guard to prevent the pieces from striking the workman in case the wheel did burst. The evidence of the defendant tended to show that its foreman, upon being applied to as above, directed the plaintiff not to use the wheel, and that guards were not required or used. Upon the last point the defendant introduced one Cook, who testafled, against the plaintiff's exception, that he was familiar with the use of emery wheels, and had been in many places where such wheels were used, and that he had only seen guards in one or two cases. The defendant also claimed that, when the plaintiff put the wheel onto the arbor, he fitted on the collar and washers improperly, and in such a manner that, when screwed up close against the side of the wheel, it was thereby cracked. As tending to show which washer was next the wheel, one Webster was permitted to testify, under the plaintiff's exception, that after the accident he fitted one of the washers which he found upon the arbor into the indentation upon the pieces of wheel. Both the washer and pieces were in court and examined by the jury.

The plaintiff requested the court to instruct the jury as follows: "When a man is employed to work upon and about dangerous machines, it is the duty of the employer to use care and prudence in the selection of the machines, and in placing guards and protections around them, and in providing rules and regulations for their use and operation, corresponding to the hazard involved in their use; and the employe has a right to rely upon the performance of that duty by the employer. The degree of care that he would be bound to exercise would be greater in proportion as the machinery was more dangerous. When the wheel in question was left in the shop with the other tools and machinery, with no mark or indication that it was unsafe for use, the plaintiff had a right to presume that the wheel had been properly tested, and was safe for use on the arbor provided for it, unless you find that he was warned not to use it, in such a manner as would prevent a man in the exercise of ordinary care from using it. The plaintiff had a right to presume that the speed of the arbor was sufficiently less than the maximum capacity of the wheel to resist, so that he would not be endangered by the ordinary variation of the speed of the arbor, and he had the right to rely upon his employer's full knowledge of the strength and capacity of the wheel, as well as the speed of the shaft; and if he did, and the wheel was unsuitable and unsafe, and the defendants had not used all proper and necessary precaution to test it, and to provide guards and the like, and by reason thereof the plaintiff received the injuries complained of, the defendants are liable, and the plaintiff would be entitled to recover. The work of the plaintiff was job work, and he had the right to use any of the tools that were placed in the shop for use about his work, that he deemed suitable for his purposes; and the defendants were bound not to leave dangerous tools about the shop, apparently for use, without sufficiently warning the plaintiff of their danger."

The court refused to comply with the requests but charged upon their subject-matter in the following language: "The only fault or negligence that the plaintiff claims that the defendant was guilty of with reference to him was in reference to his emery wheel. He claims that this emery wheel was an unsuitable tool for him to use, made as it was, and unguarded as it was. Now, gentlemen, you take this up, and consider it in the order: "Was the defendant guilty of any negligence, or guilty of acting as a prudent man would not have acted, in having this unguarded? You have heard the evidence about that An emery wheel, from its very construction and use, must be so left that it can be used; that it can be got at in some place; that it can be used for the purposes of an emery wheel. They have explained to you what the purposes are that an emery wheel is used for. You have heard described to you how they have guarded them, and how they were purposing to guard this, at this time, before this accident happened. If you think they ought to have been guarded; that this one ought to have been guarded; that a prudent man, having reference to the dangers incumbent upon operating an emery wheel, and the nature of this emery wheel, would and ought to have guarded—yet, you must go further, and find that the failure to guard it was the occasion of this injury. If, in order to use the emery wheel at all, the guarding must have left a space where the broken fragment would have struck him,...

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