Hayball v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 14 September 1897
• Citation: 72 N.W. 145,114 Mich. 135
• Parties: HAYBALL v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

72 N.W. 145

114 Mich. 135

HAYBALL v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Wayne county; George W. Smith, Judge.

Action by Albert Hayball against the Detroit, Grand Haven &amp Milwaukee Railway Company. There was a judgment on a verdict in favor of plaintiff, and defendant brings error. Reversed.

L. C Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellant.

Alfred Lucking, for appellee.

MOORE, J.

The plaintiff recovered a judgment against the defendant, for injuries from a machine he claims was out of repair, from which judgment the defendant appeals, claiming the court should have directed a verdict in its favor. If the case made by the testimony of the plaintiff himself is such as to authorize its submission to the jury, the verdict should stand; otherwise a verdict should have been directed for the defendant. The plaintiff is a machinist. June 23, 1894, he was in the employ of the defendant, using a machine called a "shaper." This machine was used for the purpose of planing steel, cast iron, brass, and other metals, and giving them such shape as was necessary. The shaping was done by means of a tool that traveled back and forth over the surface of the metal to be shaped. The tool planed the metal as it moved forward, but did not cut the metal as it came back. It is claimed the ways or guides in this machine were worn so that the machine was defective. Mr. Hayball testified of it "There was looseness in the ways, in the ram and saddle of the machine, and some play in the apron and screw of the machine. To hold the ram in place, so that it would cut straight forward and back without budging, there were ways or guides fastened to the saddle of the machine. The guides were so wide, compared with what they ought to be, as to allow the ram to move sideways, where it ought to go perfectly true." It is claimed that, as the result of this condition, when the tool came to a hard spot in the metal which was being shaped it would slip sidewise as far as the worn-out motion would allow it to go, that the tool would spring and turn, and that as the ram would force the tool forward it would dive into the metal, which would chip off and fly, as it would not do if the machine was in good order. It is claimed by the plaintiff that as a result of this defect a chip of metal was thrown from the machine into his eye, June 23, 1894, which resulted in his losing one eye. At the time of the accident plaintiff was 23 years old, and had been a machinist 5 years. He had been in the employ of the defendant 13 months. During all of this time he had worked on the same machine, and had worked on such a machine elsewhere, and was familiar with machines of that character. When he began to work, he says he discovered that the machine was defective, and used it 5 or 6 months when he asked Mr. Rose, the foreman of the shop, to make some improvements upon it, and explained to Mr. Rose the condition of the machine upon two or three occasions, and that the machine was not fit to do a good job. "I asked Mr. Rose foreman of the shop under Mr. Bleasdale, who was the general foreman or superintendent in entire charge of the shop, if I could put in four setscrews, instead of this shim, or put in cast iron, to take up that lost motion; and he said, 'No; he hadn't time to do that;' said they were in a hurry for the work, and could not spare the time to do it; that is what he told me. He said to fix it up with these pieces of sheet iron, put shims in these places, as I had done before; and I did do that, did the best I could with the machine. I was unable to work so rapidly with the machine as was required. I had different talks with Mr. Rose-three or four-about this machine. The one when he told me to fix it as I had done before was about the time the machine was moved,-some time in February or May of the year I was hurt,-I would not be positive." And that a few days before he was hurt, he had a conversation with the superintendent, which he describes as follows: "Mr. Bleasdale came along, and I says to him, 'Mr. Bleasdale, this machine isn't fit to do a good job.' 'Well,' he says, 'my boy, I know it, I know it;' he says, 'I am doing one thing after another as fast as I can.' That is what Mr. Bleasdale said,-he would very shortly come to it, would come to it very shortly. I spoke of the shaper, the machine I was working on, and he knew it. The conversation took place right at the end of the shaper. Bleasdale was coming through between the large lathe and the shaper; that is when I stopped him. There were other machines that he was working on, fixing. I knew about how many machines there were in the shop. I relied on his statement that he would get to it and fix it." After the plaintiff had testified in chief, he testified on cross-examination that the speed of the machine would make some difference about the chips flying, and that the man who runs the machine controls its speed, and the thickness of the chip that will be taken; that he had used the machine in practically the same condition for a year, without having any injury, except that he had hurt his thumb by using it to brush off the dust and chips, instead of using a brush. At the time of doing the work, he said he had his eyes pretty nearly on a level with the piece of work he was planing. "My eye was right in front of the piece I was planing, facing the machine, as the machine came toward me." He said his eye was 8, 10, or 12 inches back, and 4 or 5 inches above the piece he was planing. After the cross-examination was ended, this colloquy occurred: "Q. (by juror). Did you consider that machine dangerous to work with the way it was? A. It was dangerous. Q. (by juror). Did you know it was dangerous at the time? A. I knew it was a dangerous machine, and I told them that. Q. (by plaintiff's counsel). Did you know that it threatened any sort of injury to you at all, or that it might? A. It might. Q. If not carefully handled? A. If not carefully handled. Q. When you had your talk with Mr. Bleasdale a few days before you were hurt, was anything said about the particular defects? A. I told him, and pointed out this same thing to Mr. Bleasdale,-yes; I did. Q. Tell it to us. A. I pointed out these things to Mr. Bleasdale, the looseness here and everything, and I told him that the machine was defective, it wasn't fit to run; that is what I told him. Q. Just what did he say, as near as you can remember,-about when it would be fixed? A. Mr. Bleasdale said that he was doing one thing after another as fast as he could, and he would get to it after awhile. That is what Mr. Bleasdale said; he was doing one machine as quick as he could, and he was fixing one machine after the other as fast as he could get to it. Q. Was he actually fixing the others,-you say that he was? A. Yes. Q. State whether you relied upon his statement. A. I did, certainly. Q. What would you have done if he had not promised to fix the machine? A. I was going to leave. I had never been hurt before by this machine in this way of flying pieces." He then testified on the cross-examination that he had worked the machine a year, knowing it was loose and unsafe, and that when he returned to work after he had hurt his thumb he knew the machine was then in just as bad condition as it had been before, and that on the morning of the 23d of June, when he commenced to work, he knew the machine was in just as bad condition as it had previously been in. Both Mr. Rose and Mr. Bleasdale denied the conversations Mr. Hayball claimed to have had with them, and a great deal of testimony was introduced upon the part of the defendant showing that as late as the morning of the trial, two years after the accident, the machine was in substantially the same condition as at the time of the accident; was no worse about throwing chips than other shapers, and that all shapers used for planing...