Gazette Printing & Publishing Co. v. Suits

• Decision Date: 06 June 1924
• Docket Number: Civil 2121
• Citation: 26 Ariz. 464,226 P. 542
• Parties: GAZETTE PRINTING & PUBLISHING COMPANY, a Corporation, Also Known as GAZETTE PRINTING COMPANY, Appellant, v. SAMUEL SUITS, Appellee
• Court: Arizona Supreme Court

226 P. 542

26 Ariz. 464

GAZETTE PRINTING & PUBLISHING COMPANY, a Corporation, Also Known as GAZETTE PRINTING COMPANY, Appellant, v. SAMUEL SUITS, Appellee

Civil No. 2121

Supreme Court of Arizona

June 6, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Judgment reversed and cause remanded with directions to dismiss.

Mr Richard E. Sloan, Mr. C. R. Holton, Mr. Greig Scott and Messrs. Bullard & Jacobs, for Appellant.

Messrs Jennings & Strouse, for Appellee.

OPINION

ROSS, J.

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 stereo-plate cylinders and two impression cylinders. Stereoplates are put on to 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 boy 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 he 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 tabular 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 cylinders revolving while he reached in to pull back the clips, which consumed in all two or three or four seconds; that he could look right in and see clip and cylinder all the time, and that while he was holding clip his hand was caught between the cylinders.

Defendant makes two assignments of error. The first is directed at the court's order refusing to grant its motion for an instructed verdict at the close of the case, and the other is the court's refusal to give a requested instruction.

The action was brought under the Employers' Liability Law, chapter 6, title 14, Civil Code of 1913. The purpose of this law is to afford relief to employees who may suffer injury in certain named and defined hazardous occupations, when they do not themselves negligently cause the injury. Included in such occupations is work of the kind in which the plaintiff was engaged at the time he was injured. The statute, paragraph 3156, says:

"The occupations hereby declared and determined to be hazardous within the meaning of this chapter are as follows: . . .

"(10) All work in mills, shops, works, yards, plants and factories where steam, electricity, or any other mechanical power is used to operate machinery and appliances in and about such premises."

We would first direct attention to the fact that the right of action under this law is purely a creature of the statute and that it has features that distinguish it from most, if not all, rights of action under other provisions of the law for injuries sustained by employees. The action is very different from the common-law action of negligence. The latter distinctly sounds in tort; whereas, the former has none of the elements of tort. In this action the plaintiff does not have to show that the proximate cause of his injury was the negligence of defendant but he must show that the proximate cause of his...