Cudahy Packing Co. v. Marcan

• Decision Date: 11 March 1901
• Docket Number: 1,457.
• Citation: 106 F. 645
• Parties: CUDAHY PACKING CO. v. MARCAN.
• Court: U.S. Court of Appeals — Eighth Circuit

106 F. 645

CUDAHY PACKING CO. v. MARCAN.

No. 1,457.

United States Court of Appeals, Eighth Circuit.

March 11, 1901

Syllabus by the Court.

A minor employed as a servant assumes, to the same extent as an adult, the ordinary dangers and risks of his employment which he actually knows and appreciates, and those that are so apparent and open that one of his age, experience, and capacity would, in the exercise of ordinary care, know and appreciate them.

At the close of the evidence there is always a preliminary question for the judge before the case can be properly submitted to the jury, and that is whether or not there is any substantial evidence upon which the jury can properly return a verdict in favor of the party who produces it, and, if there is no such evidence, it is the duty of the court to direct the jury to return a verdict against him.

A minor who for four weeks had been working upon a block fourteen inches square and five inches in thickness, placed upon a wet, greasy, and slippery floor by himself, assumes the risk and danger of the slipping of the block upon the greasy floor, by means of which his hand is involuntarily thrown into the cylinders of a chopping machine.

John C Cowin (Lysle I. Abbott and M. L. Sears, on the brief), for plaintiff in error.

W. J Connell (Mr. Ives, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This was an action by an employe against his employer for a failure to discharge its duty to use reasonable diligence to furnish its servant with a reasonably safe place in which to perform his work, and the answer was that the risk and danger from which the servant suffered was one of the ordinary and patent risks of the employment which he had assumed. At the close of the trial the defendant below requested the court to instruct the jury to return a verdict in its favor, and the refusal to grant this request is the chief error of which complaint is made. The Cudahy Packing Company, the plaintiff in error, was a corporation engaged in the business of packing meat, as its name implies and Frank Marcan was one of its employes, who was engaged in operating a machine for chopping meat, called a 'hasher.' On April 30, 1898, Marcan accidentally put the fingers of his left hand into the hasher and lost them. He sued the corporation for negligence, in that it permitted the floor on which he was working to become so slippery that a block on which he was standing slipped, and caused him to throw his hand into the hasher, and in that it used a box or hopper upon the chopping machine to enable the operative to feed the meat into the hasher, which he alleged also contributed to his accident. The great weight of the testimony was that the block did not slip, and that the accident was the result of the carelessness of the defendant in error in feeding the meat into the hasher. Upon the question under consideration, however, this evidence will not be considered, and it is accordingly laid aside. The testimony of the defendant in error and of his witnesses which alone will be considered in this opinion, was that these were the facts which conditioned his case: He was a minor of ordinary intelligence, more than 17 years of age. He had been at work for the plaintiff in error for some weeks, when about March 20, 1898, he was assigned to operate the hasher. This hasher consisted of rapidly revolving cylinders, driven by machinery which chopped or hashed the meat which was fed into it through a hole above the cylinders. Over this hole a removable feeding box or hopper was fastened when the machine was in operation. The sides of this feeding box were five or six inches high, and it was the duty of the defendant in error to feed the meat which was placed in this box into the hasher. When he first took charge of the chopping machine he was taught to draw the meat in the box forward, and to feed it into the hasher through the hole over the cylinders with his hands. But he was afterwards furnished with a wooden tool called a 'stuffer,' and was instructed by his employer to use this instrument when the machine became clogged for the purpose of stuffing the meat down into and through it. This stuffer was a wooden block three and one-half inches in diameter and four inches long, provided with a handle. The hasher stood within a few inches of the south wall of the building, on a floor which sloped gently to the north, and when the feeding box was in place it stood so high that it was necessary for the operator to raise himself four or five inches above the floor in order to do his work conveniently. When the defendant in error commenced to operate this machine he was furnished with a box upon which he stood in front of the hasher to feed the meat into it. But four or five days later this box was broken, and then, by direction of his employer, he took a chopping block, placed it in front of the hasher, and thereafter stood upon this block when he was feeding the machine. This block was made of hard wood, was about fourteen inches square, five inches thick, and had an iron band around it two and one-half inches wide, and one-half an inch thick. He placed this block in position the first time he used it, and from time to time thereafter, as it was misplaced during the washing of the floor, he replaced it. Neither the foreman nor any of the other employes of the plaintiff in error handled or placed the block. It was the custom in some packing houses to use salt upon the floor to prevent it from becoming...