Masich v. American Smelting & Refining Co.
| Citation | 118 P. 764,44 Mont. 36 |
| Parties | MASICH v. AMERICAN SMELTING & REFINING CO. et al. |
| Decision Date | 21 October 1911 |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Action by Nick Masich against the American Smelting & Refining Company and another. Judgment for plaintiff. Defendants appeal. Reversed and remanded, with directions.
E. C Day and Wight & Pew, for appellants.
Galen & Mettler and W. D. Tipton, for respondent.
This action was brought to recover damages for personal injuries. At the conclusion of plaintiff's case in chief a motion for nonsuit was interposed and overruled. Defendants elected to stand upon their motion and declined to introduce any testimony. The cause was submitted to a jury, which returned a verdict for plaintiff, and judgment was rendered and entered thereon, from which judgment, and an order denying their motion for a new trial, the defendants have appealed.
Aside from a physician, who testified to the extent of plaintiff's injury, and an insurance adjuster, who produced the standard mortality tables and testified to the cost of annuities, the only witnesses introduced were the plaintiff and one Bozo Nikcevich. Each of these witnesses testified through an interpreter. The record recites that it contains all of the evidence taken upon the trial. This recital must be accepted as true; but as presented to us the evidence is so brief, so fragmentary, and presented in such manner that we are unable to state the facts with any degree of certainty that our statement is correct. Upon the trial the questions of counsel were directed to the interpreter instead of to the witnesses, and the responses appear to be the interpreter's construction of the witnesses' answers, rather than the answers themselves translated into English.
So far as we can gather the facts from the evidence and from the admissions in the pleadings, they are substantially the following: The plaintiff, a native of Montenegro, 36 years of age, was employed by the defendant smelting company to work in its smelting and refining plant at East Helena. It appears that the ore was passed through a breaker, and was then elevated and passed through a crusher, a machine consisting of rollers of some kind which revolve towards each other. It frequently happened that when the ore came to the crusher there were pieces of rock that, instead of going through the crusher as intended, would play upon the rollers, being so large or so shaped that the rollers would not grasp them readily, and it became necessary to force them between the rollers, or, if this could not be done, to remove them. The rollers were incased in a sort of box, with a covering. When a rock became lodged, the covering was raised, water poured on the rollers, and by means of a wooden stick small pieces of ore were forced about the refractory rock, and the whole made to go between the rollers, if possible. If, however, this result could not be attained, it became necessary to remove the rock with the stick, or, if not possible by that means, to have the machinery stopped and remove it by hand. The plaintiff had been employed about the smelting works for some two years or more. For about three months immediately prior to the date of his injury he was engaged in running ore cars in the room where the crusher, upon which he was injured, was situated. On February 8, 1909, he was promoted, his wages increased, and he was given work as a shoveler. His duties required him to shovel ore into the breaker, and, whenever a rock became lodged on the rollers of the crusher, to force it through or remove it. At the time he assumed this last employment the foreman instructed him as to the manner of removing rocks which could not be made to pass between the rollers. The company furnished sticks cut from rough pine boards. On February 10th, while the plaintiff was at his work, a rock came from the breaker which would not pass between the rollers. The plaintiff attempted to force it through, and then to remove it by means of one of these sticks, but was unsuccessful. He was advised by an experienced fellow workman to go to the office and have the foreman stop the machinery until the rock could be removed by hand. Acting upon this advice, the plaintiff went to the office; but the foreman was not in, and he returned to his machine and again attempted to remove the rock by means of the stick, but failed, and went to the office a second time, but was again unable to find the foreman, and returned, and for the third time endeavored to remove the rock by means of the stick. While thus engaged, the stick he was using was caught between the rollers, and in attempting to loosen it plaintiff's hand and arm were drawn between the revolving rollers and so badly crushed that amputation of the arm between the elbow and shoulder was necessary.
In charging the jury the court undertook to analyze the pleadings and state the issues. There are not any objections made to the instructions given, and we shall adopt, for the purposes of this appeal, the trial court's theory of the pleadings. The plaintiff charged the defendant company and its foreman with negligence in the following particulars: (a) In directing plaintiff to remove the rock by means of a stick while the machinery was in motion, instead of stopping the machinery; (b) in failing to warn plaintiff of the danger of attempting to remove the rock from the rollers while the machinery was in motion; and (c) in furnishing plaintiff with a defective appliance with which to work. Each defendant denied negligence, and the defendant company pleaded contributory negligence and assumption of risk. The specifications of error are directed to the insufficiency of the evidence and the refusal of the trial court to give defendants' offered instruction No. 5.
1. The complaint alleges that the foreman "ordered and directed this plaintiff to assist in the operation of said crusher, which said work was outside of and different from the usual and ordinary employment of this plaintiff." The evidence fails altogether to sustain this charge. The plaintiff's own testimony discloses that he voluntarily assumed the duties of this employment, and that his transfer from the work of carman to the position of shoveler was in the nature of a promotion at advanced wages.
The plaintiff urges upon us two propositions: (1) "A master who orders his servant to use known dangerous machinery is liable for the resulting injury;" and (2) "the giving of an order which is dangerous to execute is negligence." The promulgation of either as a general rule of law would result in the complete destruction of many of the most important industries in this state. Quartz mining cannot be carried on without the aid of dangerous explosives while most, if not all, high-power machinery operated by steam or electricity is essentially dangerous. Smelters, sawmills, and machine shops would close at once, if plaintiff's contention should be held to be correct; for in every dangerous employment at least the master would be made an insurer. But neither of the foregoing propositions states a correct rule of law of general application. Either one may be correct under certain circumstances or with certain limitations, but we do not think there can be found any authority for asserting either as a general rule. In this state it is settled that the employer's duty to his servant is to exercise reasonable care to furnish a reasonably safe place in which to work, reasonably safe appliances with which to work, and reasonably competent...
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