Detroit Crude-Oil Co. v. Grable

• Decision Date: 31 March 1899
• Docket Number: 623.
• Citation: 94 F. 73
• Parties: DETROIT CRUDE-OIL CO. v. GRABLE.
• Court: U.S. Court of Appeals — Sixth Circuit

94 F. 73

DETROIT CRUDE-OIL CO. v. GRABLE.

No. 623.

United States Court of Appeals, Sixth Circuit.

March 31, 1899

This suit was instituted in the court of common pleas of Wood county, Ohio, and removed, on application of plaintiff in error, into the circuit court of the United States for the Western division of the Northern district of Ohio. The plaintiff in error is a corporation engaged in the business of leasing land, and sinking and working oil wells thereon. The action was brought to recover damages for a personal injury sustained by the defendant in error while in the service of the plaintiff in error. He was employed in june 1895, and continued in the same work until October 23, 1896 when the injury was received,-- a period of 14 months. During this entire time the defendant in error was engaged in operating, and had charge of, an engine used in pumping oil from oil wells; the engine in question being at well No. 9. He was 26 years old, and was an experienced engineer; having worked (though not continuously) as engineer for about 12 years. He says he considered himself qualified to properly operate such an engine as he was handling. Such minor repairs as were needed from time to time were made by him. The engine was situated in an engine house, and this, with all the machinery connected with it, was, at the time of the accident, in the same condition as when the defendant in error entered into the service of the master, and had been in such condition during the entire time of his service. What is called the 'fly wheel' had a balance or outer rim attached to it with bolts, which extended through, beyond the outer rim of the wheel, towards the engine block. There were three of such bolts, varying in length from 1 1/2 to 3 inches, all projecting as stated, beyond the rim of the wheel, and towards the engine block. Between this fly wheel and the engine block there was a water-pipe line, placed along the floor, and extending from a well in the rear of the engine house between the engine block and the fly wheel connecting with what is called a 'union,' and extending from that union to the pump; being screwed into the water pump at the engine head. Two or three days previous to the accident, the engineer had himself uncoupled this water-pipe line at the union, for some purpose, and coupled it up again. This line was so placed that it extended along close to the fly wheel, and, as exact measurements made after the accident showed, was within about half an inch of the longest projecting bolt of the outer rim of the fly wheel when revolving. The proof also showed that, when the pump was working, this water pipe would vibrate, though this vibration was very slight, if at all, in a lateral direction. Just how the accident happened was a disputed question, and was left in some uncertainty by the evidence. The theory of the defendant in error was and is that, the machinery being in operation, the projecting bolts on the outer rim of the fly wheel caught this pipe, jerked it loose from its fastenings, breaking it, and that a part of it, thrown by the fly wheel, struck the plaintiff. His jaw was broken in two places, and a severe injury sustained. The pipe was undoubtedly found uncoupled at the union after the accident, and a part of it wound around the shaft; indicating that it had been, by great force, driven out of place and broken. What the defendant in error knows or says in regard to the manner in which the accident happened may be stated in his own language as follows: 'Well, I went to my place at noon to start up, and pump there in the afternoon; and I fired up, and got up steam on the boiler, and turned it down to the engine, and went down and started my engine. Well, I left the top pet cock open, always, to see when it started; and the pump started off in good shape; and I shut that up, and started around; and the steam was coming up, and the engine was running a little faster than I wanted it to, and I took hold of the throttle and checked the engine down; and, just as I took my hand off the throttle, it hit me, and-- The Court: What hit you? A. The water line. * * * Q. Do you know how you were injured? A. Well, I know I was injured while I was standing right at the engine, even with the throttle wheel. I was checking the engine down. I did not notice any displacement of any portion of the water-line pipe, or balance of the machinery. I was starting the pump. It was twelve o'clock when I got there, and I fired up the boilers, and the water was low, and I got up steam. The engine was running a little faster than I wanted it to run, and I started around to check it down; and, just as I took my hand off, something happened, and struck me. It was done so quick I couldn't see. Q. Did you know yourself what had happened? A. I could not say, exactly,' The foregoing, taken from different parts of his testimony, is practically all that is said by him upon this subject.

Everything connected with the fly wheel and the water-pipe line, and their situation with reference to each other, were, as the defendant in error admits, entirely familiar to him, and had been during the time he had been in the master's service. He says he called the attention of the superintendent of the company to the danger of the projecting bolts on two different occasions,--first, when, or very soon after, he entered upon this particular work, and also at a subsequent time, when he received an injury in the finger from and projecting bolts. He does not fix, or undertake to fix, the date of the second conversation, otherwise than to say that it was at the time of the injury to the finger. The superintendent, Modisette, does, however, fix the date of this conversation definitely, as being in January, 1896, but denies any previous conversation upon the same subject as testified to by defendant in error. The defendant in error says that he requested the superintendent to furnish suitable bolts for fastening the outer rim or balance wheel to the fly wheel, and further says there are bolts, made for that purpose, which would not project, and that the superintendent promised to get other bolts; while the superintendent says he told him that the balance wheel held in place by these bolts should be removed, as it was of no use there any way. There is therefore no conflict as to the time when the last conversation on the subject occurred. In the first conversation the servant claims to have had with the superintendent, he says he mentioned the danger of the bolts on the wheel catching in his clothes and hurting him while the wheel was in motion, and when his finger was subsequently injured that fact was mentioned. Nothing was ever said in regard to the proximity of the water-line pipe to the bolts on the fly wheel when in motion. He undertakes to say he did not think of the danger of the bolts striking the pipe line, and causing such an accident as the one which actually happened, agreeably to his theory of the case.

At the close of the whole evidence, the court overruled a motion to direct a verdict for defendant. The defendant also requested the court to charge the jury that their verdict must be for the defendant; this being in effect a motion to direct a verdict, though not put in that form. Various other special instructions were requested and refused, and certain exceptions taken to the court's charge to the jury. The trial resulted in a verdict and judgment in plaintiff's favor for $1,200, and the case is now before this court on writ of error sued out to review that judgment.

Geo. W. Radford, for plaintiff in error.

Harvey Scribner, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

CLARK District Judge, after stating the case, .

The refusal of the court, on defendant's motion at the close of the plaintiff's evidence, to direct a verdict for the defendant, is assigned for error, although apparently not relied on in the printed brief. After the motion was overruled the defendant proceeded with the case, and gave evidence on its part, and thereby waived any exception to a denial of this motion. Railway Co. v. Daniels, 152 U.S. 684, 14 Sup.Ct. 756; Runkle v. Burnham, 153 U.S. 216, 14 Sup.Ct. 837; Wilson v. Live-Stock Co., 153 U.S. 39, 14 Sup.Ct. 768. Moreover, the refusal to direct a verdict for the defendant at the close of the plaintiff's evidence, and when the defendant has not rested his case, cannot be assigned for error in this court. Railroad Co. v. Hawthorne, 144 U.S. 202, 12 Sup.Ct. 591. The court also denied the defendant's motion at the close of the whole evidence to direct a verdict for the defendant, to which exception was duly taken; and, although the argument in this court has been directed mainly to the court's action in that respect, yet, curiously enough, the court's refusal to grant the motion is not specifically assigned for error. The court also refused the defendant's first request, which was in this language: 'Under the evidence in this case, the verdict of the jury must be for the defendant. ' This request must be regarded as in all respects equivalent to a motion to direct a verdict, for it could have no other purpose or meaning, and we accordingly so treat it.

The first question with which we deal, then, is raised by the court's refusal to grant defendant's request to direct a verdict; for this is assigned for error. In determining this question, we take it for granted (but without deciding) that the accident was caused and the injury resulted as the defendant in error insists. The rim was bolted to the fly wheel to correct a loss of balance after it had been in operation, and presumably after the water-line pipe had been put down. In this view, the negligence would be in placing in position...