Knight v. Overman Wheel Co.

• Decision Date: 21 October 1899
• Citation: 174 Mass. 455,54 N.E. 890
• Parties: KNIGHT v. OVERMAN WHEEL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 455

54 N.E. 890

KNIGHT v. OVERMAN WHEEL CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 21, 1899

COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

L White and Brooks & Hamilton, for defendant.

OPINION

LATHROP J.

The plaintiff was injured while engaged with others in taking down a piece of shafting in the defendant's mill, and died soon afterwards from the injuries received. The piece of shafting was called a "generator shaft," and was 17 or 18 feet long. It had upon it two pulleys,--one near each end. One of these pulleys was 60 inches in diameter, with a face of 14 or 16 inches. The other was 50 inches in diameter with a face of 25 or 26 inches. From the 50-inch pulley to the fly wheel of an engine in the next room there was a leather belt 24 inches wide, and over this belt from the fly wheel of the same engine there was another belt to a pulley upon another shaft, about 4 or 6 feet further away from the engine than the generator shaft. The generator shaft was fastened to the ceiling of the room by means of four hangers. In order to lower the shaft, a hole was cut in the floor of the room above the generator shaft, and a chain was run through this hole, one end of which was fastened around the generator shaft, and the other end attached by a cat's-paw hitch to chain falls suspended from the ceiling of the room above. The belts referred to were left in position. A timber called a "strut" was placed under the end of the shafting nearest the driving pulley already mentioned, and was held in position by means of a jackscrew placed underneath the timber. The object of using this timber was to raise the end of the shaft under which it was placed out of the hanger box. This object had been accomplished, and the work of lowering proceeded by letting out on the chain falls and lowering on the jackscrew. Suddenly there was a jar. The cat's-paw hitch gave way, the timber under the end of the shafting came out, and the end of the shafting with the driving pulley upon it came against the plaintiff's intestate, who was working the jackscrew, causing injuries which resulted in his death a short time afterwards. At the trial there were many exceptions to the refusal to give certain rulings, and also to the admission and to the exclusion of evidence. So far as these were insisted upon, we proceed to consider them:

1. The third request for instructions was, in substance, that the plaintiff could not recover under the third count of the declaration. This was argued in connection with the ninth request, which was, in substance, that there was no evidence that the plaintiff's intestate was injured by reason of the negligence of any person in the service of the defendant, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. We are of opinion that these requests were rightly refused. One Kidder was the superintendent of the defendant company, and one Freeman was under him. There was evidence in the case from which the jury would have been warranted in finding that the accident was due to leaving the belt on the pulley, thus causing a side strain, and that this was not a proper way of doing the work. Kidder testified that he directed Freeman to have the shafting taken down, and added: "When I told Mr. Freeman about taking down this shafting, we had some talk about whether or not the belt should be cut. I do not know whether Mr. Freeman thought it ought to be cut. It was by my direction that the belt should not be cut. We could have cut the belt and replaced it. The purpose of cutting it would be to save the side strain that the belt would occasion upon the pulley as the shaft was being taken down." As to whether Freeman was a superintendent: There is no doubt that he was a foreman in charge of a gang of which the plaintiff's intestate was a member, but this fact alone does not determine the question whether his principal duty was that of superintendence. On this point the evidence was conflicting. There was testimony for the defendant which, if believed, would have warranted the jury in finding that he worked most of the time with his hands, while there was evidence for the plaintiff that he worked very little with his hands, and was principally employed in directing the men. There can be no doubt, on the evidence, that the work of lowering the shafting was under the immediate direction of Freeman, and that he had the entire charge and control of the work. There was also evidence of negligence on his part in not using a fall at each end of the shafting instead of one in the middle, or, if one only was used, in not having it so placed that the weight of the shaft on each side would be equal. Freeman also ordered the strut and jackscrew to be used. On his cross-examination he testified: "Of course, I was watching the stick all the time,--looking at it most of the time. I could not say I observed any other part of the machinery much while the process of lowering was going on. If I had looked at the chain falls, I would have known the strain of the belt was too great for the strut. Those two hooks on the chain falls straightened out." Under these circumstances it was a question of fact for the jury whether Freeman was a superintendent, and whether he was negligent. Mahoney v. Railroad Co., 160 Mass. 573, 36 N.E. 588; Gagnon v. Seaconnet Mills, 165 Mass. 221, 43 N.E. 82; Reynolds v. Barnard, 168 Mass. 226, 46 N.E. 703; Dean v. Smith, 169 Mass. 569, 48 N.E. 619; Gardner v. Telegraph Co., 170 Mass. 156, 48 N.E. 937; O'Brien v. Look, 171 Mass. 36, 50 N.E. 458.

2. The fourth request was that the plaintiff could not recover upon the fourth count of the declaration. This was argued with the eleventh request, which was: "There is no sufficient evidence that, at the time of the injury and death of the plaintiff's intestate, Freeman was acting as superintendent with the authority and consent of the defendant, and in the absence of the defendant's superintendent." There was evidence in the case that Freeman was intrusted with the duty of superintending the work of lowering the shafting by the general superintendent of the defendant company, and that the superintendent took no charge of the work and was not present. This brought Freeman within the purview of St.1894, c. 499. We have already stated that there was evidence of his negligence.

3. The twelfth request was as follows: "There is no sufficient evidence that the plaintiff's intestate was not injured as a result of the risk of the employment, voluntarily assumed by him, and the plaintiff cannot recover in this action." This request was rightly refused. It cannot be said that the falling of the shaft was one of the ordinary risks of the employment. The plaintiff's intestate was not charged with any duty with reference to the method employed, and he had a right to assume that all proper precautions had been taken. "The risk which the workman assumes by virtue of his contract of employment does not include the risk from the negligence of a superintendent." Murphy v. Coal Co., 172 Mass. 324, 327, 52 N.E. 503, and cases cited.

4. The thirteenth request was, "There is no sufficient evidence that the death of and injury to the plaintiff's intestate was not caused by the negligence of a mere fellow servant, and the plaintiff is not entitled to recover." The defendant contended that the accident was caused by the slipping of the cat's-paw hitch, which was made by a fellow servant of the intestate. It is contended that after this hitch was made a half hitch should have been made with the end of the chain, and that this would have rendered the cat's-paw hitch less likely to slip. But from the evidence the jury might well have found that the side strain on the shafting caused by the belt was the cause of the accident. The instruction requested was therefore rightly refused.

5. The fourteenth request was, "There is no sufficient evidence that the negligence of the plaintiff's intestate did not contribute to his injuries and death, and the plaintiff cannot recover in this action." This request was rightly refused because it assumes that the intestate was negligent. The question whether the intestate was in the exercise of due care is open however, on the general instructions asked for, that the plaintiff was not entitled to recover, and may be conveniently considered here. The testimony relied upon to show negligence was that of one Snape, a fellow workman of the plaintiff's intestate, and was as follows: "Knight was lowering on the jackscrew,--lowering right along,--and I told him to stop. I thought he got too low. He said at one time he was almost down, but I did not tell him to stop at the time. Freeman, I believe, told him--told the crowd--to stop, and he says, 'You have got two inches yet.' Freeman said there was two inches to lower. Knight did not lower any more till he got orders. He lowered the two inches. Then I says--I felt the stick come loose, and I said: 'That is enough, Charley. Hold up. That is enough, Charley.' Then he turned the jack a little, and the shaft came down. It came down immediately upon the turning of the jack." Snape was a witness summoned by the defendant, and put on the stand by the plaintiff. The testimony recited above was brought out on cross-examination. He was contradicted by a written statement which he signed the day after the accident. In this statement what is above recited did not appear. On the contrary he said: "I did not see any carelessness or negligence on the part of any one, and I considered everything was safe. I was working right beside Knight, and, had I felt that everything was not safe, I would have spoken of it. Knight did not try to move the jack at all. ***...