Melzer v. Peninsular Car Co.

• Decision Date: 11 July 1889
• Citation: 76 Mich. 94,42 N.W. 1078
• Court: Michigan Supreme Court
• Parties: MELZER v. PENINSULAR CAR CO.

42 N.W. 1078

76 Mich. 94

MELZER v. PENINSULAR CAR CO.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Wayne county; REILLY, Judge.

Michael Melzer sued the Peninsular Car Company to recover for personal injuries. The jury, under the instructions of the court, found a verdict for defendant. Plaintiff appeals.

LONG J.

This action is brought to recover damages for an injury to plaintiff in trimming a grindstone for the defendant while he was in defendant's employ. The defendant is a corporation doing business in the city of Detroit. The plaintiff entered into its employ in the spring of 1886, as a common laborer, wheeling out scrap-iron from the drills in the machine-shop, keeping them clean, etc., and in which employment he continued until September 12, 1887. The plaintiff's claim in his declaration is that on September 10, 1887, the foreman of defendant ordered him to work upon a grindstone, to trim the same, the first thing the following Monday; that the only knowledge of how said stone was to be trimmed was obtained by him from said foreman about 10 days previous thereto, when the foreman trimmed at said stone for a few minutes, saying to plaintiff, "Now look. This is the way to do it,"-when the foreman held an iron bar, about five feet long, with his left hand about a foot from the lower end of the bar, the right hand grasping it near the breast, the bar extending over one shoulder, and leaning on the stand at the side of the stone, pressing the end of the iron against the stone while it revolved with great rapidity, being driven with steam-power; that he had never worked upon any such machine, and knew nothing about it, except as he saw the foreman operate it for a few minutes. On the following Monday morning, September 12, 1887 as ordered by the foreman, plaintiff proceeded to trim the stone in the manner in which he saw the foreman do it, as nearly as he could remember it, in the manner above described. That while so engaged, and when he had been so engaged thereat about five minutes, without any fault or negligence on his part, his left hand and arm were caught between the stone and stand or frame in which it revolved and crushed and mutilated so that amputation of two of his fingers became necessary, and his left arm permanently crippled and nearly destroyed. The claim is made that the injury is due entirely to the negligence of the defendant in allowing the stone to be trimmed while it was revolving at such great rapidity, and with such force without having the stand beside it sufficiently close; in ordering the plaintiff, and in permitting and allowing him, to work in trimming it-in trimming said stone-when he was totally unacquainted with its operation; in having an unsuitable bar with which to trim it, to-wit, a common iron bar, rough at the end, instead of being flattened and prepared for the purpose at the end, to be held against the stone; and that it was the duty of the defendant, by reason of the employment of the plaintiff and directing him to work at and operate said machinery, to have caused the stand along-side of the stone to be properly placed close to the stone. Testimony was introduced on the trial showing the circumstances under which the plaintiff was injured. At the close of the testimony the court directed the verdict for the defendant. The plaintiff brings error. The following errors are assigned: The court erred in not allowing James W. Terry, witness for the plaintiff, to answer the question, "Would you consider it unsafe to put an inexperienced man at trimming a grindstone at all?" The court erred in not allowing Walter Tidswell, witness for plaintiff, to answer the following questions: "Did you find it dangerous to trim that stone? Did the foreman at different times request the machinest to trim it, or did he usually pick up some inexperienced man to do it? Did the foreman ever request you to trim it? Did you refuse to trim it?" And that the court erred in directing a verdict for the defendant.

The plaintiff was sworn in his own behalf, and testified "My employment in the Peninsular Car-Works was clearing out the shop, doing errands, and doing hand-work all round. I worked around the machinery there every day at first, but broke eight boards, and then the foreman took me off. I only worked at it for a day,-at the machinery. I do not remember just when I did the work on the machine and broke the eight boards, but it was before that. He didn't have a man, and put me at the machine. I took care of the machine the way the foreman told me. He said, 'Michael, you go at this machine, and do this work.' The first time I did anything at the grindstone was the second day I was there at work. The first time I was there, at the grindstone, was when the foreman showed me the first time how to work it. He went on the two sides, and he said, 'Mike, you come here. This is the way to do it.' That was about fifteen or sixteen days before I got hurt that he showed me on that grindstone. All the foreman said the first time, and the explanation he gave me, was, 'Mike, take the pipe, and hold it tight,' and I had it this way, but didn't hold it tight enough, and the foreman said, 'Damn you, hold it tight.' Then I broke the end off. The second time I went there on Saturday, and the first thing the foreman said was, 'You go to the grindstone,' and I took the pipe, and went to work at it. The foreman took the bar, and showed me how to do it. He trimmed fifteen or twenty minutes, trimming two...