"Plaintiff
seeks to recover for injuries sustained while in the employ
of defendant as its pressman in charge of its duplex tubular
printing press. At the time the press was being operated by
electric power, and he received his injuries in attempting to
adjust a clip on a revolving cylinder while it was in motion
and in doing so his left hand got caught between two such
cylinders and was very badly crushed and injured. He had been
working for defendant about one year, the first eight or nine
months exclusively as a stereotyper, and the last three or
four months as a stereotyper and assistant to the foreman of
the pressroom. He had been acting as such
assistant for the purpose of qualifying himself to do the
foreman's work while the latter was on his vacation. The
foreman left the latter part of July, 1921, leaving plaintiff
in charge. Plaintiff was hurt on the morning of August 11
1921, while acting as substitute foreman.
"The
printing press has five decks or units; each deck or unit, as
we understand it, consisting of two stereoplate cylinders and
two impression cylinders. Stereoplates are put onto the
cylinders daily to print defendant's paper. They are held
or fastened to the cylinders by means of clips. In removing
plates from the cylinders, which in this case was done each
morning, the clips were supposed to readjust themselves
automatically. When they did not do so, it was the duty of
the person removing plates to place them in position so that
when plates were next put on the cylinder the clips would
catch them without any handling.
"Assisting
plaintiff on the morning he was injured was Harry Feurriegel
who had been working as an assistant in the pressroom under
Hansen for about a year and a half. One of his duties each
morning was to remove the plates from the cylinders and to
wipe and oil the press. Sometimes he would adjust the clips
as he would remove the plates. He did not do so on the
cylinder on which plaintiff was working. Just as plaintiff
was in the act of putting a plate on cylinder, he discovered
the clips were not in place, and it became necessary for him
to use his hands in adjusting them; but before he could do so
the cylinder had to be turned until the clip was on top of
it, when he could reach in about his arm's length and
adjust it. This had to be done to get the plates on the
cylinder.
"There
were two ways of turning the cylinder, both well known to
plaintiff; one was by hand power, and the other by electric
power. The former was accomplished by the use of an iron bar
held in the hand, one end being inserted in holes in a wheel
on a shaft that connected with the cylinder. There were six
holes in the wheel. Sometimes it would be necessary to bar it
two or three times to get the cylinder in position to adjust
it. The hand power was always used in putting
plates on or taking them off cylinder, as while this was
being done the cylinder had to be still. The other way of
turning the cylinder was by the application of electric
power, and it seems that both kinds of power, but generally
electric, were used in making adjustments or corrections in
the clips when they were out of place.
"Plaintiff
was using the electric power on the occasion that he was
hurt. His explanation we give in his own language: 'I had
just throwed in this deck and turned the power on
and was going to put my plate in, and I seen the cleats were
not back, and I told the boy who was helping me, I said,
"Harry, the clips are not back, start her up"; and
he started her up, and I reached in to get them and was
pulling them back. When I reached in to get them, I reached
in and got a hold of them, and it comes right out. This
morning it didn't pull; this first finger caught on it
when I pulled; it didn't come; and when it didn't
come the press was going on and ran into the other cylinder,
and this finger went in there and took this hand in. The boys
said he had shut the power off before I hollered and it
coasted in with my hand. If he hadn't shut it off -- it
will coast from five to ten seconds the speed we were going;
running faster than that, it will coast from twenty seconds
to half a minute before it will stop, and so my hand went in,
and he had to back it up for me to get my hand out.'
"It
is not seriously disputed that Hansen, the regular foreman
under whom plaintiff worked as an assistant the preceding
three or four months before he was injured, had been doing
the same thing in the same way that plaintiff was doing it
when injured. On that point the plaintiff says: 'that was
the way I had been shown to do it. Mr. Hansen, the foreman,
gave me those instructions. He did that work exactly the same
way I done it. I ran the press for him last night while he
done it. I never observed Mr. Hansen before I got hurt use
that bar, not to turn the press to get the cleats back. I
never saw him use it since I got hurt.'
"Harry
Feurriegel testified on that point as follows: 'In order
to reach the clips, he reached his hand in and
pulled them back about the length of your arm. He [Hansen]
did it all the time that way -- the same way that Sam did it.
My job was to turn on the power. I saw Chris Hansen do it
pretty near every day. There was a bar there to put on the
plates with. I have seen Chris Hansen use the bar to turn
over the machine instead of the motor; to put on the plates
you have to. I never saw him do it in pulling the cleats
back.'
"The
plaintiff, in the presence of the court and jury, showed what
he was doing when hurt. Hansen, in testifying, stated: 'I
saw Sam [plaintiff] show the jury where that cleat was. That
is the way I do it. I do it at my own risk. I never told Sam
Suits not to do it that way. My instructions was to the
helper to do that. The helper should have done that, not Sam.
He saw me do it the same way.' Again: 'I pull the
clips occasionally now. I pull it back with my hand just part
of the time. I did it when Mr. Suits was present while the
machine was operated by electric power.' He also
testified that he had 'cautioned plaintiff about the
machine, to be very careful and not to get caught, and if
anything happened to let the machine go, to keep from getting
caught in it.'
"Plaintiff
was an experienced stereotyper. According to his own
testimony he put in five years as an apprentice and had been
a journeyman for six years. He had been around printing
presses eleven years, and had about five months'
experience as a pressman, three or four months of which time
he was learning the work under Hansen. His employment by the
defendant was his first contact with a tubular press. The
time required to learn the trade of a press foreman,
according to the evidence, is five years. The plaintiff was
twenty-six years old at the time of his injury.
"On
cross-examination plaintiff admitted he knew the cylinders
could be revolved by hand power; that he had seen it done and
knew himself how to do it; that while the operation by hand
power was not very quick, it was perfectly safe, because the
cylinders were still as he would reach in to adjust the
clips; that he had no assistant when using hand power for such purpose, as he would turn cylinders to
proper position and then, while they were still, adjust
clips. On the other hand, he stated when electric power was
used he had an assistant to handle the throttle, who started
machinery as he directed and kept...
