Johnson v. Hovey

• Decision Date: 05 January 1894
• Citation: 98 Mich. 343,57 N.W. 172
• Court: Michigan Supreme Court
• Parties: JOHNSON v. HOVEY et al.

57 N.W. 172

98 Mich. 343

JOHNSON v. HOVEY et al.

Supreme Court of Michigan

January 5, 1894

Error to circuit court, Muskegon county; Albert Dickerman, Judge.

Action by Oscar M. Johnson against Horatio N. Hovey and John B McCracken for personal injuries. Judgment for plaintiff. Defendants bring error. Reversed.

Bunker & Carpenter, for appellants.

Turner Turner & Turner, (Brown & Lovelace, of counsel,) for appellee.

LONG J.

Plaintiff had his hand injured by coming in contact with what is called a "peep saw" in defendants' mill, and brings this action for damages, claiming that his injuries resulted from the negligence of the defendants. The defendants were operating a steam sawmill, and among other machinery used therein was a train of live rollers, used in carrying slabs edgings, timber, and lumber from the main saw to the front of the mill. About the center of this train of rollers was a small circular saw, set laterally across the train of rollers, and used for sawing in two the planks, slabs timber, and lumber which were of unusual length. When the mill was in operation this saw operated at a high rate of speed. When not in use it was hidden below the train of rollers. There was a planking between the rollers, and when the saw was needed for use it was raised by a foot lever above the level of the rollers through the aperture in the planking. This saw was counterbalanced by a weighted box fastened to the frame of the saw beneath the floor of the mill. The saw frame was carried up and down in slides or ways. The saw was brought up for use by placing the foot upon a peg which was above the level of the floor. On removing the foot from the peg, the saw frame slid down in the ways, carrying the saw down the slides just below the level of the rollers. The only allegations of negligence in the declaration which are at all specific are that the counterbalance was too heavily weighted, and that the saw frame and ways had been allowed to become warped, dirty, gummed, and clogged; and of these acts of negligence the overweighting of the counterbalance is the act which it is claimed caused the accident. The plaintiff, on the trial, testified to the manner in which the injury occurred, and claimed that while in the discharge of his duties, and as a slab was being carried along over the live rollers, the rounding side of the slab being down, he reached his hand under it, to turn it over, so that it would be more readily carried off by the rollers, and while attempting so to turn it it moved along, carrying his hand directly over the saw, which he supposed had been carried back by the counterbalance, but which in fact projected a little above the planking, so that his hand came in contact with it, and was injured. The case was tried before a jury, who returned verdict in favor of plaintiff. It is contended by defendants' counsel (1) that there was no evidence in the case showing or tending to show that the counterbalance was too heavy; (2) that there was no evidence that the frame or ways were warped; (3) that there was no evidence that defendants allowed the frame or ways to become dirty, gummed, and clogged; (4) that there was no evidence that the ways and machinery were not constructed of safe, sound, and strong material; (5) that the plaintiff's own testimony shows that he was guilty of contributory negligence.

1. The plaintiff was examined fully upon the question whether the counterbalance was too heavy. On his direct examination he said that he did not know why the saw did not go down, but he believed or guessed the weight was too heavy. He was asked why he guessed it was too heavy, and said, "Because, if the weight was not too heavy, the saw would have to go down." Again he said: "I don't know exactly what made the saw stop and stand above the table, but I believe the slide was too tight." Again he said: "I don't know what prevented it from dropping back. I don't know whether it was too heavy or not." He testified that the saw worked all right that morning before the accident. The defendants called the millwright and mechanical engineer as witnesses, both of whom testified positively that the weight was not too heavy, and that the saw was properly balanced. They also stated that "if the counterbalance was too heavy the saw would stay up all the time,...