Kean v. Detroit Copper & Brass Rolling Mills

• Decision Date: 09 June 1887
• Citation: 33 N.W. 395,66 Mich. 277
• Parties: KEAN v. DETROIT COPPER & BRASS ROLLING-MILLS.
• Court: Michigan Supreme Court

33 N.W. 395

66 Mich. 277

KEAN v. DETROIT COPPER & BRASS ROLLING-MILLS.

Supreme Court of Michigan

June 9, 1887

Error to superior court of Detroit.

C.A. Kent, for plaintiff.

Dickinson Thurber & Hosmer, for defendant and appellant.

SHERWOOD J.

The defendant in this case is a manufacturer of copper and brass materials, having its place of business in the city of Detroit, and in its works has a machine called the "Breakdown Rolls," the purpose of which is to reduce bars of the metal to thin plates. The rolls are about 10 inches in diameter and 40 inches long, and run together at a speed of about 13 revolutions a minute. When used they are placed from an eighth to an inch apart, according to the thickness of the plate desired to be made. Oil is used upon the rolls, and they have to be cleaned from one to three times a day. In attempting to clean the rolls from the wrong side, plaintiff's hand was caught and drawn in between them, in consequence of which he lost the four fingers of his right hand. It is for this injury, thus received, the plaintiff seeks to recover of the defendant in this action.

He states his case in two counts: In the first, it is alleged "that plaintiff was an ordinary laborer engaged to pile scraps, and that he was ordered against his will, to work as an assistant on the breakdown rolls, a dangerous employment of the danger of which he was not informed; and while in such employment was directed by his foreman to wipe the rolls on a side which must certainly result in accident, and that the accident occurred in such wiping without plaintiff's fault." The second count states "that plaintiff was employed as an assistant on a dangerous piece of machinery, under a foreman who was intemperate and incompetent, and that this foreman ordered the cleaning of the rolls, which would certainly result in accident," etc. The verdict was for the plaintiff on both counts, awarding him the sum of $3,000.

The defendant brings error. The testimony on the part of the plaintiff was given by himself, the foreman of the mills, and five other employes of the company, so far as shown by the record, which purports to contain it all. The plaintiff's testimony will be found in full in the margin. ^[1]

Several of the other witnesses testified to the defendant's foreman, Kelley, being of intemperate habits; that on one or two occasions he had been permitted to give directions when under the influence of liquor, and has been known to keep liquor at the rolling-mills; and witness Duxbury testified on the part of plaintiff that he was foreman at defendant's rolling-mills 15 months during 1881 and 1882 and knew Kean and Kelley, and saw the latter come in the shop "intoxicated, and sent him home. Never saw him afterwards under the influence of liquor, but saw him frequently go out into saloons, and I notified the superintendent, and for this he was discharged." He further testified that, "the only danger about the rolls is that of getting caught between them; *** that it is never necessary to wipe the rolls on the front side. Wiping the rolls is the most dangerous work connected with the rolls, and there is no danger if you wipe them on the right side. *** A man who had been employed as Kean had been, if put on the rolls, ought in a week to learn every danger connected with the rolls, and after that I should not think it would be necessary to tell him anything."

The defendant's testimony tended to show that the plaintiff worked in defendant's mills from the month of February to the month of December, 1882, both inclusive, and that he worked from 10 1/2 to 25 1/2 days in each month during said period. Further evidence was also given tending to show that plaintiff began working on the rolls in April, that he worked there occasionally in April, May, and June; that he began to work on said rolls steadily in July, and worked there until the accident,--all the time he worked in the shop when the mills were in use, save two weeks; that prior to the accident Kean was commanded by his foreman, Kelley, never to clean off the rolls on the front side; that, on the day of the accident, Kean, in cleaning off the rolls on the proper side, had left them dirty, and that, in consequence, Kelley ordered him to finish cleaning them off; that at this time Kelley and Kean were about 35 feet from the rolls; that Kean went alone back to the rolls; that Kelley noticed him cleaning on the front side, and started to stop him, but that before he reached Kean the accident happened; that Kelley turned up the screw after the accident for the purpose of releasing Kean; that Kelley was discharged by defendant, July 7, 1882; that he was re-employed November 9, 1882, on promise of future good conduct; that from that time until after the accident he was never under the influence of liquor in the defendant's mills; that on the day and at the time of the accident he was perfectly sober, and assisted in releasing plaintiff from the rolls, and had him in his subsequent care until taken to the hospital.

The record states the foregoing is the substance of all the testimony given for the defendant.

Thirteen errors are assigned upon the various proceedings had in the case at the circuit. Counsel for defendant, however, reduces these to four, which, stated in his own language, are as follows: "First. The evidence of intemperance in the foreman Kelley should have been rejected, and the second count based on the charge of such intemperance should have been taken from the jury. Second. The court should have charged that there was no evidence that plaintiff was ordered to clean the rolls on the wrong side by his foreman. Third. The court should have charged that plaintiff must have known that it was dangerous to clean the rolls on the wrong side, and that no command of his foreman excused his running the risk. Fourth. The court erred in allowing counsel for the plaintiff to discuss to the jury his theory of what the law ought to be, and the conduct of the Michigan Central Railroad Co."

The first proposition relates to the intemperance of Kelley, and its effect upon his capacity to properly discharge the duties of his position. The proof clearly shows that Kelley, the foreman of the defendant, was a man of intemperate habits, accustomed to get intoxicated and drunk to such an extent as to incapacitate him to properly discharge the duties of his position; that this was so understood by the defendant; and for that reason its superintendent discharged him from its service. It also appears that this habit of Kelley had for a long time been known to those in charge of the defendant's business. There can be no question, I apprehend, at this late day, but that it must be regarded as negligence, and a want of ordinary care, in any of our large manufacturing institutions, to place men who are accustomed to the habitual use to excess of intoxicating liquor in charge of business requiring the control and direction of persons operating dangerous machinery, and that for any injury arising to the employed under the charge of an intoxicated foreman, arising from such cause, when the company has knowledge of such intemperate habits, it must and should make reasonable compensation. Intemperance was an agency tending to disqualify a man for the position Kelley held. To what extent it had affected him in that direction, and what was his condition in this respect when he gave the direction to plaintiff claimed, on the day and occasion of the accident, were questions for the jury, and the evidence offered of Kelley's habits was in my judgment properly received, and the court committed no error in rejecting defendant's first proposition.

The second proposition required the court to instruct the jury that there was no evidence of the order of defendant, by its foreman, to plaintiff, to clean the rolls on the side he was injured. The testimony of Kean was to that effect. The defendant's direction, if any, to the plaintiff, on the occasion of the accident, was given by Kelley. The testimony of the plaintiff shows that he had, on the day of the accident, been told by Kelley to wipe off the rolls, and the plaintiff did so in the usual way and left them. That he was met by Kelley about 35 feet from the rolls, (as the other testimony shows,) and Kelley told him, "I want you to wipe them off better, [meaning the rolls.]" He pointed to the rolls on the front side, and said, "I want you to clean those rolls better," and that Kelley went with him to the front side of the rolls, and that he stood right by the side of him when the plaintiff took a rag and reached over on the platform and wiped the rolls; that Kelley stood right by the side of him at the time, and took hold of the screw which held the rolls nearly together in their place, and the plaintiff then says: "I want to wipe off the top roll, then I want to wipe off the bottom roll, and I went right in." He further says, at this time: "We were both facing the rolls." Some of the testimony of plaintiff's other witnesses is corroborative of the statements of the plaintiff. It also appears, by the testimony of Duxbury, it was the plaintiff's duty to obey the demands and directions of Kelley. Whether the plaintiff was directed by Kelley, or from a fair interpretation of what Kelley did and said on that occasion there was a direction to Kean, to wipe the rolls on the front side, were questions for the jury, and were very properly left to them to determine, in the view I take of the testimony. There was testimony from which they might find such direction by Kelley, and the ruling of the court was correct upon this proposition.

The third proposition is one of more difficulty. It requested the court to charge that the plaintiff must have known the...