Crucible Steel Forge Co. v. Moir

• Decision Date: 05 January 1915
• Docket Number: 2521.
• Citation: 219 F. 151
• Parties: CRUCIBLE STEEL FORGE CO. v. MOIR.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F. 151

CRUCIBLE STEEL FORGE CO. v. MOIR.

No. 2521.

United States Court of Appeals, Sixth Circuit.

January 5, 1915

E. G Guthery, of Cleveland, Ohio, for plaintiff in error.

R. B Newcomb, of Cleveland, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Defendant in error recovered verdict and judgment for alleged negligent injuries resulting in the death of decedent. The most prominent question concerns the refusal to direct verdict for defendant. Three grounds are urged in support of this alleged error:

(a) Lack of evidence tending to show that the negligence complained of was the proximate cause of the accident. At the time of the accident decedent was operating a turning lathe in defendant's machine shop. This lathe comprised a face plate 36 inches in diameter, on the surface of which was bolted a projecting driver in the form of an angle iron; the bolts extended three or four inches from the surface of the face plate; a steel forging was held in the lathe by two centers, one of which was in the face plate; a dog was fastened to the forging by means of a projecting set screw; the turning of the face plate (which made 200 revolutions per minute) caused the driver to engage the dog and thus to revolve the forging. The cutting tool was carried by a heavy post, mounted upon a carriage fed progressively by machinery toward the face plate. Just before the accident the tool post had nearly completed its travel, and decedent was seen standing near it. There was no eyewitness to the accident. Decedent was found with his head caught between the face plate and the tool post (then but 9 inches apart); the back of the head being against the face plate and the front of the face against the tool post. The left arm was lying across the body of the lathe; the right arm hung limply outside. Deceased was kept on his feet by the catching of the head as described. He had apparently been killed by being struck upon the head by the bolts projecting from the driver on the face plate, which revolved toward the front of the machine. The negligence relied upon is the failure to cover or guard the projecting and revolving driver and dog and the nuts and bolts attached thereto, as required by the Ohio statute. ^[1]

It is urged that the manner of the accident can only be conjectured; in other words, that there is no tangible evidence supporting the theory that he was caught or injured by the projecting and revolving parts of the machine. The rule is well settled that a jury is not permitted to speculate between several causes of an accident, and to find defendant's negligence to be the real cause in the absence of a satisfactory foundation therefor in the testimony. This proposition is sufficiently illustrated by decisions of the Supreme Court and of this court cited in the margin. ^[2]

We think there was substantial testimony tending to show that the death occurred through the negligence complained of. There was testimony that following the accident a canvas glove was found on the floor on the back side of the machine, directly in line with the face plate, and in line with decedent's left arm if projected that far, and was kept in defendant's possession until the trial; that decedent more often than not wore canvas gloves when at work; that the glove, while made for the right hand, had apparently been worn upon the left hand, and was 'ripped clean open; it was just like a flat piece of cloth. ' The deceased, when found, had no glove upon either hand, and the glove found was not identified as his. No attempt, however, has been made to account for the glove on any other theory than that it belonged to and was worn by decedent at the time of the accident, and the jury might not improperly so find. It was the duty of decedent to 'watch his work' and to look over 'to see what his tool is doing. ' He sometimes brushed off the machine the iron chips thrown off by the cutting, and while the machine was operating.

The rule is too well settled, to require more than the merest reference to authority, that on a request for directed verdict that view of the proofs most favorable to the party against whom the direction is asked must be taken. ^[3] We think the evidence sufficient to support a finding that decedent was drawn into the machine through the catching of his glove on the projecting and revolving parts of the driving mechanism, in spite of the suggestion that he must have been engaged in doing something for the satisfaction of his own whim or fancy. He is presumed to have been in the performance of his duty. Worthington v. Elmer, supra, 207 Fed.at page 309, 125 C.C.A. 50, and cases there cited. And negligence on decedent's part would not bar recovery in cases where, as here, the employer had not elected to take the benefit of the Ohio Workmen's Compensation Act (Act June 15, 1911 (102 Ohio Laws, p. 529) Sec. 21-- 1). the accident is no more speculative than that which has been held by this court, in cases cited in the margin, ^[4] to justify submission to the jury

(b) It is contended that the evidence does not show defendant negligent. The statute requires owners and operators of shops and factories, by way of suitable provision to prevent injury to persons coming into contact with machinery therein: (3) To 'cover, cut off, or countersink keys, bolts, set screws and all parts of wheels, shafting or other revolving machinery projecting unevenly beyond the surface of such revolving machinery'; and (7) to 'guard all saws * * * and all other dangerous machinery.' This statute imposes an absolute and positive duty to...