Kinnear Mfg. Co. v. Carlisle

• Decision Date: 02 April 1907
• Docket Number: 1,596.
• Citation: 152 F. 933
• Parties: KINNEAR MFG. CO. v. CARLISLE.
• Court: U.S. Court of Appeals — Sixth Circuit

152 F. 933

KINNEAR MFG. CO. v. CARLISLE.

No. 1,596.

United States Court of Appeals, Sixth Circuit.

April 2, 1907

H. B Arnold, for plaintiff in error.

L. G Addison, for defendant in error.

Before SEVERENS and RICHARDS, Circuit Judges, and COCHRAN, District judge.

COCHRAN District Judge.

This was an action by the defendant in error, James H. Carlisle hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, to recover damages for a personal injury sustained October 12, 1903, and consisting in the loss of his left arm. It resulted in a verdict and judgment for $4,500. The case was heard and determined on plaintiff's evidence. At the close thereof defendant moved the court to direct the jury to find for it. This motion was overruled. The ruling was duly excepted to and is assigned as error here. As we hold that this assignment is well taken, it is not necessary to consider any other.

The facts appearing from plaintiff's evidence, are about these:

The defendant was engaged in the business of manufacturing steel doors and shutters at Columbus, Ohio, and plaintiff was its employe. He belonged to the galvanizing department, and his work, in the main, consisted in helping to run sheets of steel through the galvanizing machine. There was another helper besides himself, and a foreman, named Grossman, set over the two. That department consisted of this machine and these three employes. The blacksmith department was in the same room, operated by a blacksmith and helper. The entire plant was in charge of a superintendent, named Volp. When plaintiff was employed by Volp, he placed him in charge of Grossman, and told him that Grossman would tell him what to do. He had been in defendant's employ since the preceding June 16th.

The motive power which ran the galvanizing machine was generated by a gas engine and the connection between the two was made by means of shafts, pulleys, and belts. The work in which plaintiff was engaged when injured was ungearing the machine. They had run out of galvanizing material, and it was necessary to shut the machine down. The custom was when the machine was shut down for any length of time to ungear it. More particularly, he was engaged in trying to hook up the belt by which the power was transmitted from the main shaft to the machine after it had been thrown off the pulley on said shaft upon which it ran. This he was doing by Grossman's direction. It had been so thrown off either by plaintiff with his hand, or with a pole, or by Grossman with a pole. The pulley and shaft were about 10 or 12 feet south of the south end of the machine, and about 10 or 12 feet from the floor. The hook on which he was trying to hook the belt was iron and movable. One end was bent so as to hook on to a gas pipe behind and above the shaft, and the other end was provided with a hook to hook up the belt. It could have been hooked up by removing the hook from the gas pipe, and after inserting the other end therein replacing it thereon. Instead, plaintiff tried to hook it by inserting his left hand within the belt and placing it on the hook. This brought his hand between the belt and the shaft. The shaft was revolving rapidly. He had on gloves and was standing on top of an unsteady stepladder. In making the effort his hand caught upon the shaft, and at once his arm and the belt began to revolve around the shaft and continued so to do until his whole body had been thrown around it twice, his arm had been wrenched from its socket, and he had fallen to the floor.

The accident happened on Monday. This method of disposing of the belt whilst the machine was shut down had been put in operation for the first time the previous Saturday. It was so put by Grossman, the foreman. It had been suggested by the blacksmith's helper, and the blacksmith had made the hook. The belt had been hooked up by Grossman on Saturday, but not in plaintiff's presence. He had not hooked it up or seen it hooked up before the accident. The method of disposing of the belt previous thereto had been this: After it had been thrown from the pulley on the main shaft, it was also thrown from the pulley on the countershaft. It was then taken around the end of the main shaft and hung up in front of it on a piece of wood nailed there. Plaintiff, by Grossman's direction, had hung the belt up in this way at least two or three times. Obviously this method was less dangerous than the other. By throwing the belt off the pulley of the countershaft more play was given to it, and, instead of being hooked up with the revolving shaft within it, it was removed therefrom, and then hung up.

When plaintiff first made the effort to hook up the belt, he found it difficult to do so. He thereupon requested Grossman to throw the belt from the pulley on the countershaft. In response to this request, Grossman caught hold of the stepladder, and said that it was not necessary to do this; that he had hooked it up himself, and to go ahead and hook it up. It was in compliance with this direction that the effort was made which resulted in the injury. Plaintiff, at the time he made it, knew that the shaft was revolving within the belt, and that the removal of the other end thereof from the pulley of the countershaft would make it safer and easier to handle it. It was because of this that he requested its removal.

Such, then, are the facts which appeared from plaintiff's evidence. It is possible that, apart from any other consideration, they were sufficient to require that the case be submitted to the determination of a jury under proper instructions; this, on the ground that the matter of providing a method of disposing of the belt, when thrown from the pulley of the main shaft, was defendant's absolute, positive, personal, and nondelegable duty as master, and it was open for plaintiff reasonably to claim that Grossman had been intrusted by defendant with its performance; that the method provided by him was not reasonably safe, and in providing it he failed to exercise reasonable care; and that he (plaintiff) had not assumed the risk arising from said lack of safety or been guilty of contributory negligence. It is not necessary, however, that we determine this, and by referring to it we are not to be understood as expressing any opinion in regard thereto. The want of necessity for our so doing is due to the fact that such is not plaintiff's case as set forth in his petition. He proceeds upon no such theory therein.

The facts therein alleged are that defendant, through its foreman, Grossman, negligently directed plaintiff to climb up on the stepladder and throw the belt off the pulley while the machine was in motion and connected with the motive power; that after ascending the stepladder he requested the foreman to loosen or unfasten the belt from the opposite pulley so as to enable him to remove the belt in safety; that the defendant, through its foreman, negligently refused to remove the belt from the other pulley and negligently directed him to remove it whilst it (the pulley) and the machine were revolving at such a dangerous rate of speed as to render the removal of the belt highly dangerous to him; and that in attempting to carry the directions out his hand was caught, and the injury complained of sustained. It will be noted that the allegation is that the act that plaintiff was doing when injured was throwing the belt off the pulley whilst the machine was in motion and connected with the motive power. Such, in fact, was not the case. The act that he was then doing was trying to hook the belt up whilst the shaft was revolving within it after it had been thrown from the pulley and the machine stopped. We simply direct attention to this variance without basing our action upon it.

The petition states no cause of action against the defendant. The negligent acts of which it complains are the directions of the foreman, Grossman, to plaintiff, before and after his refusal to throw the belt from the pulley on the countershaft, to throw the belt from the pulley on the main shaft, and that refusal. Such negligence was the negligence of a fellow servant. The fact that Grossman was the superior servant and plaintiff subordinate to him is not sufficient to take the pleaded case out of the fellow-servant rule. Louisville & Nashville R. Co. v. Stuber, 108 F. 934 4, C.C.A. 149, 54 L.R.A. 696; Northern Pac. R. Co. v. Charless, 162 U.S. 359, 16 Sup.Ct. 848, 40 L.Ed. 999; Martin v. Atcheson, T. & S.F.R. Co., 166 U.S. 399, 17 Sup.Ct. 603, 41 L.Ed. 1051; Alaska Mining Co. v. Whelan, 168 U.S. 86, 18 Sup.Ct. 40, 42 L.Ed. 390; Baltimore & Ohio R. Co. v. Brown, 146 F....