Kinney v. Folkerts

• Decision Date: 28 December 1889
• Citation: 78 Mich. 687,44 N.W. 152
• Court: Michigan Supreme Court
• Parties: KINNEY v. FOLKERTS et al.

44 N.W. 152

78 Mich. 687

KINNEY v. FOLKERTS et al.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Alpena county; R. J. KELLEY, Judge.

Action for personal injuries, brought by David Kinney against Folkert C. Folkerts, Peter H. Luther, and Joseph McNally copartners under the firm name of Luther, McNally & Co. Verdict and judgment were given for plaintiff, and defendants bring error.

Frank Emerick and John C Shields, for plaintiffs in error.

Turnbull & Dafoe, (Depew & Rutherford, of counsel,) for defendant in error.

LONG, J.

The declaration in this cause contained three counts. In the first it is alleged substantially, that the defendants, under the firm name of Luther, McNally & Co., were, on October 8 1888, at Alpena, engaged in carrying on a planing-mill, and running and using in said mill a certain machine, called a "fan," for the purpose of sucking up and blowing the shavings made at said mill to various places; that such fan is composed of a wheel, with arms, incased with a covering, with certain pipes attached thereto, said fan being driven by certain pulleys and belts, and revolving at great speed; that, plaintiff being on said day engaged in repairing and changing the pipes attached to said fan, he notified the defendants to stop said fan, and not allow said fan to be started or put in motion while he was repairing the same that defendants did stop the same, and promised plaintiff not to start the same for one hour, or while plaintiff was working around it; that as soon as said fan was stopped, and became motionless, he proceeded with said repairs,-detached the pipes from said fan,-when the defendants, within said hour, ordered plaintiff to replace said pipes, and reattach the same to the fan, which he proceeded to do; that the defendants, without notice or warning to plaintiff, wrongfully and negligently started the fan, and put the same in motion, and, while the plaintiff was engaged in repairing and reattaching said pipes, without fault or negligence on his part, the fan then struck and came in contact with the plaintiff's left hand, crushing and mangling it, etc. The second count charges that after he had removed the pipes he was ordered by the defendants to replace the same; that it was the duty of the defendants not to run said fan while he (plaintiff) was so reattaching said pipes, yet the defendants carelessly and negligently ran said fan while the plaintiff was so engaged by order of defendants, by reason whereof the said fan came in contact with plaintiff's hand, greatly injuring it, etc. The third count charges that it was the duty of defendants to keep said fan and machinery motionless while he was so replacing said pipes, and also to give plaintiff notice of the starting of said machinery and fan, yet the defendants, well knowing their duty, negligently disregarded the same, and did then and there, while the plaintiff was so engaged in reattaching said pipes, without notice or warning to plaintiff, start and run said machinery and put the same in motion, thereby crushing and mangling plaintiff's hand, etc. On the trial in the Alpena circuit court, plaintiff had verdict and judgment for $5,000. Defendants bring error.

The claim made in this court is that the proofs do not support the declaration, and that the plaintiff's own testimony shows him guilty of such negligence that he is not entitled to recover. Some errors are also claimed in the admission of evidence and the charge of the court, as well as the refusal to charge as requested by defendant's counsel. These claims will be noticed further on. On the trial the plaintiff gave evidence, in his own behalf, tending to show that he was a machinist, and had been working around the defendant's mill for some time, and had put up the blower, and attached the pipes for its effective working. The blower was incased in a box, was made of a wheel with paddles, something like a water-wheel, with a pulley on each side, outside the box, to which the belts were attached to drive it; and the wheel made about 2,000 revolutions per minute. On the morning of October 8, 1888, plaintiff went to the mill, and defendant McNally wanted the pipes to the blower fixed. These pipes were attached to the outside of the box, and fastened against and to it with bolts or nails put through the flange of the pipes and a flange projecting from the edge of the box, on either side, and extending from the box, about eight feet from the floor to the floor of the mill. These pipes were unbolted and taken down by the plaintiff on that morning, at the request of the defendant McNally Some contention arises here whether the pipe through which the plaintiff claims to have extended his arm at the time of the accident was a continuous pipe, reaching from the box to the floor, or whether it was one which had a joint some two feet from the box, the short, upper piece being an elbow which fastened to the box. The claim of the plaintiff is that there was such a joint or elbow, which he slipped apart at this joint, while the contention of the defendants is-and a great amount of testimony was given by defendants upon this point-that the pipe was a continuous one from the box to the floor, and contained no joint, and was not taken apart on that morning. Plaintiff testifies that after the defendant ordered him to fix the pipe, and alter it so it would be placed over the shaft, he then told defendant he would have to stop the fan, when the defendant said, "All right. I will do so," (using the language of the plaintiff.) "So he shut down the mill, and was standing with me, and took of the belts of the blower, and immediately started running it again, and left the blower stopped; and I went to work and took the pipes down, and told my brother to take the pipes that I was to alter out in the shed adjoining, a few feet, where I was doing this work, and I stayed in, and told McNally not to put the belt on for an hour, and the boy (Sam Clark) said, 'Can't you do it quicker?' I said, 'No, sir,' and he said, 'Why?' or something like that. McNally was then present. They stayed while I took the pipes down. Then I took a pipe, and leaned it up against the wall,-just a temporary pipe he had,-and took that and stood it on the floor, and said: 'There is no pipes for their shavings, and there is no use in running it; and when I am done I will notify you I am through.' So I went along where my brother was, and was out there five or ten minutes, and Mr. McNally came along, and he said: 'Kinney, I want you to come in here and fit that temporary pipe-I want to start the blower-as quick as you can.' I said, 'All right,' and we both run right in quick, and I took this elbow and stuck it in the blower, and had my fingers clipped just like that. I pulled my hand out, and slung the elbow on the floor. Question. Did you know, when you went in there with McNally, anything in reference to their having started the blower again? Answer. No, sir. It was just the same as I left it,-just from a glance,-just the same as I left it. Q. That is what you supposed? A. Yes. The pipes were off, and there wasn't nothing for making a noise,-no whistling or making a noise or anything, so you would hear it. If the pipes had been on, I might have heard the suction of the wind, but they wasn't. Q. If you had information that they had started that fan again, state to the jury whether you would have attemped to put on that pipe again. A. No, sir; I wouldn't, because you couldn't do it without getting your hand taken off. There is only that half-inch flange in there; and, if you put your hand through, you would get it taken off. Q. Did McNally, or any one of the other gentlemen there, say anything to you, or give you any notice that they had started that machinery again? A. No, sir. There was nothing said about it. Q. Had you any knowledge or notice at the time you went in there-if so, state what-of the starting of that machinery again? A. No, sir. I didn't know nothing about it." On the cross-examination of the plaintiff, it appeared that there were two belts to drive the blower,-one on each side,-which ran down from a main shaft to pulleys outside of the box, and on either end of the shaft running through the wheel to which the paddles of the blower were attached. These belts were the only motive power of the blower, and, when in position to drive it, were within a few inches of the opening to which plaintiff was attempting to fasten the pipe. The pipe itself, as plaintiff claims, which he was attempting to put on, was an elbow some two feet in length; the part turning towards the side of the blower being only a few inches in length, and through which holes were made,-the bolts going through this into the flange on the side of the box. That, running in hurriedly, he stepped upon a saw-horse, to bring himself within reach of the box, put his arm through the pipe,-from the bottom upwards,-to feel for the bolt-holes; and, not knowing the fan was in motion, he extended his hand through the hole in the side of the box, and among the fans, and was injured. His attention being called, upon his cross-examination, to his care in going there, and his attempt to fasten the pipe on, he stated that he did not look to see if the blower was running. The testimony of the plaintiff, while corroborated in most particulars by that of his brother, is disputed by the defendants, and several other witnesses, in almost every essential particular; Joseph McNally and others testifying that the blower was not stopped that morning for the purpose of fixing the pipes, and they further testifying that the pipe did not have a loose elbow, but was fastened together for its whole length, and was put on by nails put through the flange of the pipe and...