Deye v. Lodge & Shipley Mach. Tool Co.

• Citation: 137 F. 480
• Decision Date: 02 May 1905
• Docket Number: 1,377.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Parties: DEYE v. LODGE & SHIPLEY MACH. TOOL CO.

137 F. 480

DEYE v. LODGE & SHIPLEY MACH. TOOL CO.

No. 1,377.

United States Court of Appeals, Sixth Circuit.

May 2, 1905

A company engaged in making heavy machine tools caused lathe beds, after they had been cast, to be taken to the finishing shop, where they were finished and cleaned, and piled up until wanted for use by the employés there, under directions of a foreman, who was generally competent. Held, that the company owed no personal duty, as a master, to supervise the manner in which the beds were piled, and could not be held liable for an injury to a fellow servant of the foreman caused by the slipping of one of the castings from a pile near which he was working, and which was alleged to have been improperly built, on the theory that he was not furnished with a reasonably safe place to work; the piling of the castings being a detail of the work itself, the risk from which was assumed by the workman.

Action for personal injuries sustained by plaintiff in error while in the employment of the defendant in error. Upon all of the evidence, there was a direction for defendant in error. Deye's injury was sustained while engaged, with others in moving a large iron casting, called a 'lathe bed,' by the falling of one or more similar castings from a pile adjacent to the casting being removed. The defendant company is a corporation engaged in making machine tools. Its business was divided into several departments. These lathe beds were heavy iron castings, of different sizes, and weighing from one to six thousand pounds each, and ranged from 10 to 20 feet in length, and from 1 to 2 feet in width and thickness. They were of cast iron, hollow in the center, with brackets across the central space. On top were two V's or shears, an inch or more in width, and half inch in height, running along on each side of the bed, and projecting above the general level of the bed, upon which the parts of the completed machine tool slid. They were delivered by wagon at the 'casting and cleaning department,' where they were received by a receiving clerk, who, with the assistance of the wagoner, and by means of a crane, lifted them off of the wagon and piled them one on top of another, in piles of from three to six sometimes bottom to bottom, top to top, just as they came off the wagon. These piles were in tiers on the north side of the building. One Lutz was foreman of this casting and cleaning department, and from time to time he would have the castings taken from the piles and cleaned, and then put back on the pile. This cleaning consisted in chipping off burrs and smoothing them with an emery wheel. As a cleaned bed was needed in the machine shop, Lutz would have one of them taken from its pile and removed by means of a crane into the machine shop. Deye was a workman in this casting and cleaning department, under Lutz, as foreman. He had been there at work for about five weeks, and had frequently seen these castings received and piled and removed for cleaning or to be built up in the machine shop, though he had never himself been called upon to handle them or pile them until the occasion of his hurt. While subject to the orders of Lutz, and liable to be put to any kind of work in his department, he had theretofore been engaged only in cleaning small castings with acid, and in washing the rags used for that purpose. On the morning of his injury he was called upon by Lutz to assist him in removing a cleaned lathe bed, needed in the machine shop, from a pile containing two or three others. The pile was one of a tier, the one next containing five or six such castings. A chain was fastened around the one to be moved, and the chain fastened to the crane. While Deye was pulling to lift the casting, and after it had been raised slightly above those below, one or more of the castings upon the adjacent higher pile slid off and against the one being raised, causing it to swing and crush Deye against the wall near which he was working.

Harlan Cleveland, for plaintiff in error.

E. W. Strong, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

The general fitness and competency of Lutz, the foreman, who is said to have negligently piled the castings which fell and injured Deye, was not questioned. That Lutz and Deye were fellow servants, and that each assumed, as part of the risk of the business, the risk of the negligence of the other and of the other workmen engaged in and about the castings and about the castings and cleaning branch of the defendant's business, is equally indisputable. The case must turn therefore, upon the question as to whether the place of work was dangerous through neglect of any personal duty imposed by law upon the employer. The contention is that the place where Deye was called upon to work when hurt was a dangerous place, by reason of its proximity to a pile of castings which were liable to slip and fall because not properly piled, with strips of wood between them. The place was safe enough, except in so far as it was made unsafe by the system or manner in which these castings were piled. There was evidence tending to show that these beds would not have been so liable to slip and fall if sticks of wood had been placed between the castings when being piled up, and that it was the practice in some shops and foundries to interpose pieces of wood to guard against slipping or falling. There was also evidence tending to show that no wood had ever been used or supplied for that purpose, nor any direction given by the defendant in...