Fox v. Spring Lake Iron Co.

• Decision Date: 22 December 1891
• Citation: 89 Mich. 387,50 N.W. 872
• Court: Michigan Supreme Court
• Parties: FOX v. SPRING LAKE IRON CO.

50 N.W. 872

89 Mich. 387

FOX v. SPRING LAKE IRON CO.

Supreme Court of Michigan

December 22, 1891

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action by William H. Fox against the Spring Lake Iron Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Smith, Nims, Hoyt & Erwin, for appellant.

Myron H. Walker and John M. Mathewson, ( De Long & O'Hara, of counsel,) for appellee.

CHAMPLIN C.J.

The defendant was operating a blast-furnace at Bangor, Mich., in March, 1888, and employed plaintiff as top filler, whose duty it was to put coal and ore into the top of the furnace, and keep it full. There was a platform at the top of the furnace and the coal and ore were brought to this platform by means of a car running up an inclined plane from the stock-house and operated by an engine in the engine-house connected with the car by a wire rope which wound around an iron drum. There was a brake attached to the drum for the purpose of stopping and holding the car at any point on the track. The whole machinery was called an "automatic hoist," and its operation was under the control of the top filler. When the car was drawn to the platform at the top of the inclined plane it was level with the platform, and the coal with which it was laden, being in hand carts, and the ore, in wheelbarrows, were removed to the platform and dumped. When this was being done the retention of the car in place was not secured alone by the brake but there was a hook and staple attached to the platform and car which was used to safely hold and secure the car in place. It was a fact well known to the plaintiff and to the other employes that the brake could not be trusted at all times to hold the car in place. In the operation of the hoisting engine it had sometimes happened that, by reason of the wire rope stretching, or some other cause, the car would not be brought quite up to the platform, and then the level of the car would be below that of the platform, making it difficult to unload. Whenever this happened, the engineer, with such help as he required, would readjust the automatic part of the machine by setting it ahead to let the car run up higher. To do this it was necessary to draw the key which held the automatic gear wheel to the shaft. The plaintiff's shift was from 12 o'clock at night to 12 o'clock noon. On the night of the 14th of March, 1888, when he went to his place at the top of the furnace, he found that the car did not quite come to the platform. He had observed this fact before he ascended the ladder or steps leading to the platform, and had notified one Winch, then in charge of the engine, of that fact, and he said it would be repaired as soon as Mr. Marshall, the head engineer, came. George Marshall was the head engineer, and it was his duty to remedy the difficulty. Hiram Barnes was night furnaceman. He had charge of the furnace, and charge of the men, from 12 at night until noon. The plaintiff was subject to his orders. One Gibson was the "boss foundry-man," who had general oversight and supervision of the men and work and who hired and discharged employes. It was testified to that Barnes had in one instance discharged a man employed as top filler, and employed another in his place. After unloading the car, plaintiff let the car down to the stock-room, and went to putting in and leveling off the coal and ore, when Barnes called to him to come down, and then Marshall called to him to come down and help fix the engine. He came down, and went to the hoisting-engine room, and found them engaged in trying to remove the key to the wheel of the automatic appliance. Marshall was holding an iron bar with the end turned up to hook onto the end of the key, and Barnes was striking the end of the bar with a sledge hammer. Barnes told plaintiff to hold the light. The light was a torch with a handle six or eight inches long. It was lighted and upon the floor. Plaintiff took up the light, and held it. The bar broke without loosening the key, and then Marshall took a cold-chisel and hammer, and went to the other side of the drum, and tried to get the key out. The drum is of iron, about 20 inches or 2 feet wide, having flanges at the rim to hold the coil, and about 4 feet in diameter. It has iron spokes an inch thick and 4 inches wide. Barnes told plaintiff to hold the light so Marshall could see. Plaintiff stepped to the end of the drum, and held the light partially into it, and Marshall said he could not see where plaintiff was holding the light. Then plaintiff said: "You wait till I see where I can see, and then you can see." He then turned himself around a little, and stuck his arm into the drum between the spokes and standard of the drum, leaned over so he could see where Marshall was working, and held the light that way. Plaintiff testifies, and so does Johnson, that Barnes told him to hold the light into the drum. Plaintiff also testifies that Marshall was working with the cold-chisel and hammer inside the drum on the opposite side from him, a distance from where he stood holding the torch of 20 inches or 2 feet; that he held the light below the shaft where Marshall was at work so he could see. The iron cable was wound around the drum, and attached to the car. Marshall had finished his work, and was straightening up, and before plaintiff removed the torch the drum revolved, and caught his arm between the spoke of the drum and standard, and crushed and broke his arm. The plaintiff brought this action to recover damages for the injury thus received.

The declaration contains four counts. The 1st, 2d, and 4th counts do not set forth or allege any duty of defendant towards plaintiff, but aver certain acts which they charge were negligent, viz., in the first count they aver "that while he was holding said light in such manner said engine was started carelessly and negligently by said Barnes and Marshall, or one of them, and, without any warning to or knowledge of the plaintiff, the said wheel began to revolve, whereupon the plaintiff's right arm was caught," etc. In the second count it is averred "that Marshall and Barnes did attempt and undertake to repair and fix said hoist, and did for that purpose direct said plaintiff, who was under the orders and authority and whose duty it was to obey said Barnes and Marshall aforesaid, to assist them in repairing the same. And in so assisting them said plaintiff was directed and ordered by said Barnes to hold said torch or light inside of the drum of said automatic safety hoist, etc.; that while so holding the same, through the careless, negligent, and unskillful acts of said Barnes and Marshall in repairing said engine, the automatic brake attached to said engine, and with which the same was started and stopped, was released or set off in such manner as to cause said drum to revolve rapidly, and without any notice or warning to plaintiff, and his right hand and arm were thereby caught," etc. The fourth count avers "that said plaintiff was under the direction and orders of said Barnes and Marshall in his work for said defendant, and it was a part of his duty to obey their orders and directions, and that the said Barnes and Marshall, in repairing said hoist, did carelessly and negligently pry up the drum or wheel of said hoist around which was wound the wire rope or cord which was fastened to and raised said car of ore to the top of said furnace, and in prying up said drum or wheel they, the said Barnes and Marshall, did carelessly and negligently wind up around said wheel or drum a part of such cord or rope, thereby lifting and hoisting from the pit the car so attached to the end of said rope, and thereby hoisted the same some distance up the said inclined plane or runway towards the top of said furnace, and did then negligently neglect and fail to fasten said wheel or drum except as said automatic brake held it in position, or to block or in anywise support said car, but left the weight of said car attached to said rope or cord belting at said wheel or drum, and did then proceed with the repairing of said hoist." And "thereupon while he was holding the light, and having his arm part way inside the drum or wheel, the automatic brake holding said wheel in position was in some manner negligently released or set off by the said Marshall in making said repairs, and was at the same time, and would not at all times hold said wheel, of which defect defendant then and there had notice, and by reason of such defect and said negligence of said Marshall became released and was set off, and thereupon the weight of said car attached to said rope or wire wound around said wheel, as it descends said inclined plane to the bottom of the pit from whence it was hoisted, caused said wheel or drum to revolve rapidly and with great force, and before plaintiff had any warning," etc. The third count alleges that "it became and was the duty of said defendant to keep said machinery and said automatic engine and hoist in proper repair and in good condition, so that it should not be in any wise dangerous or injurious to defendant's employes and to this plaintiff. And, such being their duty as aforesaid, the defendant did on, to-wit, the 14th day of March, 1888, neglect to keep or put the same in repair, and had for a considerable time prior thereto permitted and allowed the same to become and remain in poor and dangerous condition and out of repair, whereby the said hoist would not lift or carry the car of ore up said inclined track to the top of said furnace in proper manner, and whereby the safety or automatic brake, so called, by which said hoist was stopped and started, would not work, and would not safely and securely stop said hoist, and stop the lifting and hoisting of said cars of ore, and hold...