Mcconnell v. Frank E. Block Co

• Decision Date: 26 March 1921
• Docket Number: (No. 11775.)
• Citation: 26 Ga.App. 550,106 S.E. 617
• Parties: McCONNELL. v. FRANK E. BLOCK CO.
• Court: Georgia Court of Appeals

26 Ga.App. 550

106 S.E. 617

McCONNELL.

v.FRANK E. BLOCK CO.

(No. 11775.)

Court of Appeals of Georgia, Division No. 2.

March 26, 1921.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Charles McConnell against the Frank E. Block Company. Judgment for defendant, and plaintiff brings error. Affirmed.

The petition alleged that the plaintiff was employed in defendant's candy factory, his particular duty being to operate two machines known as "cream beaters." These machines consisted of two revolving cylinders contained inside of a box or container which held the candy or cream. Each of the cylinders was furnished with teeth, which, when the cylinders revolved, would whip or beat the cream into the proper consistency. The top of the machine was open for a space of about 9 inches wide by 40 inches long, which opening was intended to be covered by a top made of wire mesh. This was made firm by bending the ends of the wire down around the edges of the container, thus preventing it from getting out of place; but by reason of the age of the wire top and the continued bending of the ends of the wire back and forth the edges of the wire top had become broken off, so that there was no way to fasten it securely in its place. A tin cup full of water stood on top of the wire cover, it being used to pour water from time to time into the machine.

At the time of the accident, plaintiff was engaged in operating one of these cream beaters. Defendant's superintendent, Logan, took hold of a hose, which was hanging on the wall near the cream beater, and walked with the end of the hose in his hands toward another machine (called a kiss machine), presumably for the purpose of cleaning the kiss machine. His back was to the cream beater, and as he walked along with the hose dragging behind him, he did' not look back to see if the hose cleared the top of the cream beater. As he moved toward the other machine, the hose behind him caught under the wire top of the cream beater and upset it, and also the tin cup—

"tipping them over, and putting both in a position where they were liable to be drawn into the machinery, with the result of spoiling the large amount of cream * * * and of probably damaging the machinery. In order to prevent the wire top and tin cup from falling into the cream beater, with the results aforesaid, plaintiff, without time for deliberation or reflection, and acting from a natural and sudden impulse to seize the top and the can and prevent them from falling into the machine, thrust out his left hand to catch said articles before same were drawn into the machine, and in some way his hand became entangled in the wire, and before he could extricate it, it was drawn in between two large rollers and badly crushed."

The petition charged the defendant with negligence: (1) In failing to provide safe machinery, in that the wire top was worn and defective, and there were no means of fas-tening it securely in its place; and (2) in that defendant's superintendent, Logan, handled the hose unskillfully and carelessly in causing it to upset the wire and tin can, "thus causing the emergency in which plaintiff attempted to save the property of his employer." The petition further alleged that—

"The plaintiff had been running said machine about eight months, and by being careful had not had any accident on account of the said defect in said wire top."

The petition was demurred to generally, and at the hearing plaintiff tendered an amendment, alleging that defendant was also negligent (1) in failing to provide plaintiff with a safe place to work, and (2) in not furnishing machinery equal in kind to that generally used; and further alleging that—

"At the time the plaintiff attempted to prevent the water can and wire top from being drawn into the machine, as hereinbefore alleged, his attention was so distracted to and absorbed in said act, he did not have time to think, and did not think, of any danger to himself in making said attempt."

This amendment was disallowed by the court, who entered the following order:

"The foregoing general demurrer is sustained, with 10 days' leave to the plaintiff to amend."

Within the time allowed, plaintiff filed a second amendment, amplifying the description of the machine which injured him, and describing in detail how the injury occurred. The amendment further emphasized and elaborated upon the allegation made in the first amendment that at the time the accident occurred the plaintiff was so absorbed in his work that he did not think of the danger of thrusting his hand in contact with the revolving teeth on the cylinders. The amendment also alleged:

"Plaintiff further amends paragraph 6 by striking therefrom the allegation that 'plaintiff had been running said machine about eight months, and by being careful had not had any accident on account of the said defect in said wire top.' "

Defendant renewed its demurrer to the petition as thus amended, and upon this hearing the demurrer was sustained, and the petition dismissed, to which final order of the court dismissing...