Elie v. C. Cowles & Co.

• Decision Date: 10 June 1909
• Court: Connecticut Supreme Court
• Parties: ELIE v. C. COWLES & CO.

73 A. 258

82 Conn. 236

ELIE

v. C. COWLES & CO.

Supreme Court of Errors of Connecticut.

June 10, 1909.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by George Elie against C. Cowles & Co. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff was employed in defendant's factory to operate a machine known as an "automatic drop-lifter," sometimes called a "cold power drop." The machine consisted in part of a heavy drop or hammer, which was raised to a considerable height by the operation of a crank by the application of power, and, when so raised, the hammer was held in place by a dog falling into and catching the cogs of a wheel or ratchet. On the dog being released, the hammer would fall with great force, and its impact accomplished the work Intended. The lifter was defective, in that the gears were worn and insufficient, so that the dog did not at all times properly and adequately catch in the cogs and hold the lifter in proper position. It was also defective, in that the crank did not properly revolve and perform its full function as part of the lifter, and the drop did not securely hold the hammer in place during the operation of the machine. As a consequence of these defects, plaintiff lost the use of his right hand, and was permanently disabled by the hammer unexpectedly falling upon it as he was operating the machine on certain key metal. Plaintiff alleged negligence, in that defendant failed to provide a reasonably safe appliance and instrumentalities for his work, in failing to provide a safe and perfect machine, in failing to inspect the machine, and in failing to properly repair the lifter, etc. It also charged that all of the defects were known or should have been known to defendant, and that plaintiff "had not equal means of knowledge." At the close of plaintiff's case its motion for a nonsuit was granted, and, plaintiff's motion to set the same aside being denied, he appealed.

Philip Pond, for appellant.

William H. Ely and William B. Ely, for appellee.

CURTIS, J. The motion for a nonsuit presented two questions for the consideration of the trial court: First. What facts alleged in the complaint were material to the plaintiff's case as he presented it in the complaint? Second. Has the plaintiff made out a prima facie case by producing substantial evidence in support of his cause as he presented it?

If the complaint is demurrable because it does not contain an allegation that the plaintiff did not know the defective condition of the drop press and the danger of its use, or an allegation of other facts sufficient to show that the plaintiff did not assume the risk, the insufficiency of the complaint would not determine the materiality of any fact alleged. "During a trial to the jury the legal sufficiency of the material facts put in issue by the allegations of the complaint and denials of the answer cannot be questioned; and by 'material facts' in this connection is meant facts constituting a part of the plaintiff's case as he presents it" Cook v. Morris, 66 Conn. 201, 202, 33 Atl. 994; Adams v. Way, 32 Conn. 167. When it is determined by the court what are the material facts of the case presented by the pleadings, then, on a motion for a judgment of nonsuit, the court has before it the question whether or not there is substantial evidence in support of all the material facts. Foskett & Bishop Co. v. Swayne, 70 Conn. 75, 38 Atl. 893. In the seventh paragraph of the complaint as amended the defective and unsafe condition of the drop press is described, and it is alleged that this condition was "known or should have been known to the defendant, and of which the plaintiff had not equal means of knowledge." Was this allegation that the plaintiff did not have means of knowledge of the defective and unsafe condition of the drop press equal to that of the defendant a material one under the pleadings? The plaintiff was attempting to allege a cause of action by a servant against a master for injury received from a defective and unsafe drop press. He must allege facts which show a breach of the master's duty. The duty of the master as to instruments is to exercise reasonable care to provide for his servant a reasonably safe instrument for his work, unless the servant has assumed the risk in the use of the instrument. A servant assumes the risk when he knows the defective condition of an instrument, appreciates the danger from its use, and voluntarily encounters the risk. In a complaint in such an action it is therefore necessary to allege facts which show that the risk or danger was not assumed, otherwise it would not appear from the complaint that the master owed any duty to the servant. The usual allegation is that the plaintiff was ignorant of the unsafe condition of the instrument. That is a sufficient allegation if the plaintiff relies upon his ignorance to show his nonassumption of the risk, but, if he relies upon other facts, he should plead them. Hayden v. Smithville Mfg. Co., 29 Conn. 548; O'Keefe v. National Folding Box & Paper Co., 66 Conn. 38, 33 Atl. 587; Cleveland, C., C. & St. L. R. Co. v. Parker, 154 Ind. 153, 56 N. E. 86; Griffiths v. St. Catherine Docks, 13 Q. B. Div. 685; Thomas v. Quartermaine, 18 Q. B. Div. 685; Bigelow on Torts (7th Ed.) p. 754; Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857. It is apparent that the allegation of lack of equal means of knowledge in this complaint was inserted to meet this requirement, and was a material allegation in the case the plaintiff presented. His position, as disclosed by the claim of his counsel, is that, although his testimony shows that he knew the defective condition of the press, it does not show that he knew the danger from the condition, or that he had means of knowledge equal to that of the defendant. Knowledge in this connection means...