Gilmore v. Am. Tube & Stamping Co.

• Decision Date: 05 March 1907
• Court: Connecticut Supreme Court
• Parties: GILMORE v. AMERICAN TUBE & STAMPING CO.

66 A. 4

79 Conn. 498

GILMORE

v. AMERICAN TUBE & STAMPING CO.

Supreme Court of Errors of Connecticut.

March 5, 1907.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Charles H. Gilmore against the American Tube & Stamping Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Arthur M. Marsh and Henry B. Stoddard, for appellant. Stiles Judson, for appellee.

HALL, J. The finding states substantially these facts: The paintiff sustained a serious injury to his hand by the falling of a heavy hammer of a drop press which he was operating as an employé of the defendant. The cause of the fall of the hammer was the parting in two places of the lacing of a double canvas belt by which the hammer was raised. The parting of the lacing was due to the facts that at the time of the accident it was badly worn so that it was ready to part at certain points; that from previous wear it was unfit for further use when it was last placed in the belt before the accident; and that, owing to the character of the lacing used, it was improperly placed in the belt, in that it was not doubled in drawing it back and forth through the three holes in the four layers of the double belt, where it was turned back to attach it to an iron sling by which it was connected with the hammer. The drop press in question, with many others in the same room, were under the care of a foreman, one Shea, a competent workman selected and assigned for the purpose, without negligence, by the defendant, whose duties, among others, were to watch the condition of the drop presses, replace broken belts, insert belt lacings when necessary, and to operate one of the drop presses when his other duties permitted. For the purpose of cutting belt lacings therefrom to be used in the factory, the defendant kept a stock of lacing hide, which had been carefully inspected by competent persons, in a room adjoining the pressroom and available to said foreman when wanted. The belt lacing at the points where it parted were not observable to an operator of the press, and its condition at these points could only be discerned by a particular examination after separating the double belt. There was no mechanical obstacle to prevent the plaintiff from pulling down the belt on his machine and unlacing it, and examining the lacing, but it was not his duty to do so. He had never been requested to, and he was not familiar with the use of lacings. He had no knowledge of the condition of the lacing, and paid no attention to it. It was the duty of the men in the pressroom to report the fact to Shea when a belt broke or a machine became out of order. The examination and inspection of the lacings had been confided only to Shea, and he was familiar with these duties and had performed them for several years. The life of the inner belt, of the double belt, which alone comes in contact with the pulley above—the purpose of the outer belt being for protection when the inner one breaks—is, in ordinary continuous use, about three months, and of a belt lacing, in ordinary continuous use, about six months. When a lacing was taken out on account of the breaking of an inner belt of a drop press, Shea examined it, and it was his duty, if the lacing was found to be sound, to place it in use again, otherwise to discard it and put in a new one. The defendant did not cause the belt laces to be inspected except as above stated. The belt on the press in question had been in use about three months, and the lacing, when then placed in it, was, from previous wear, unfit for use. Shea knew, or by the use of ordinary care would have known, the defective condition of the lacing. He was negligent in using the worn lacing, in placing it in the belt without doubling it, and failing to inspect and replace the lacing as frequently as was reasonably necessary to prevent accident. The defendant used reasonable care in the selection and supervision of the fellow servants of the plaintiff, and in the furnishing of materials provided for his employment. No belt lacing on a drop press had ever broken before in the factory during the many years the defendant had used them. These facts fall short of establishing what the defendant undertook to prove upon the hearing in damages, that it had fulfilled its duty to the plaintiff to exercise reasonable care to provide for him "reasonably safe appliances and instrumentalities for his work."

Conceding that it appears that the defendant at all times kept suitable material in a proper place ready for use from which sufficient belt lacings could have been cut, the case at bar differs in many important respects from Whittlesey v. New York, N. H. & H. R. Co., 77 Conn. 100, 58 Atl. 459, 107 Am. St. Rep. 21, and from Kelly v. New Haven Steamboat Co., 74 Conn. 343, 50 Atl. 871, 57 L. R. A. 494, 92 Am. St Rep. 220, and other cases cited by the defendant, in which it was held that the master is not liable when he has provided his workmen with suitable appliances and materials which it is within their capacity to use, and the use and care of which are incidental to their work, or are matters of detail entrusted to operators in the management of safe machinery. It appears in the case before us that the duty of preparing and placing lacings in belts was never imposed upon the plaintiff, nor upon any other mere operator of a drop press, hut upon Shea. It does not appear that the work of preparing and adjusting the lacings were acts easily accomplished by the operators of the drop presses, and which did not require the services of a person of special skill. It does appear that the plaintiff was not familiar with that work, and that upon the 35 drop presses in the defendant's factory that work had been intrusted entirely to Shea for several years. While the duty of inspection is sometimes of such a character that it may properly he imposed upon either the employer or employé (Bergin v. Southern N. E. Telephone Co., 70 Conn....