Northern Pac. Ry. Co. v. Altimus

• Decision Date: 16 May 1910
• Docket Number: 1,793.
• Citation: 179 F. 275
• Parties: NORTHERN PAC. RY. CO. v. ALTIMUS.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F. 275

NORTHERN PAC. RY. CO. v. ALTIMUS.

No. 1,793.

United States Court of Appeals, Ninth Circuit.

May 16, 1910

Wm Wallace, Jr., R. F. Gaines, and John G. Brown, for plaintiff in error.

Miller & O'Connor and Walsh & Nolan, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The defendant in error received personal injuries from an accident while in the service of the plaintiff in error. He was a helper, working with one Andrews, a boiler maker, on the top of a boiler belonging to the plaintiff in error tapping out stay bolts. He alleged in his complaint that the plaintiff in error furnished him and Andrews with a certain air motor with which to do the work, and that while he was assisting in the operation of the air motor, and doing the work required of him, it became and was necessary for him to hold a certain handle used in connection therewith, and that while he was holding the handle, and while the motor was in operation, the handle broke and was detached from the machine, causing him to fall violently from the top of the engine to the floor; that the air motor and the handle so furnished him to do the work, which work he was obliged to perform as a boiler maker's helper, were in a defective unsafe, and insecure condition; that, in the preparation of the said handle for placing it in said motor, it was materially weakened by cutting a substantial portion of it by reason whereof the accident happened, all of which the defendant knew, or should have known by the exercise of reasonable care. The plaintiff in error set up as a defense that the injuries sustained by the defendant in error were caused by his contributing fault and carelessness, and for a second defense that the injury was due to causes and risks which the defendant in error had assumed.

The assignment of error principally relied upon is that the court erred in overruling the motion, made at the close of the evidence, for a directed verdict in favor of the plaintiff in error. It was shown on the trial that the motor so used for tapping holes in the boilers, which are undergoing repairs, is a machine of considerable size, weighing 40 or 50 pounds; that it is supplied with two handles, one on each side, and so fixed to the machine that, while in operation, one of the handles is held by the boiler maker and the other is held by his helper, and pressure is exerted on the one handle to counterbalance the pressure exerted upon the other to hold the machine in position; that the operations are conducted under the control and direction of the boiler maker, and that the motors, with the handles, are supplied from the factory.

It was shown that sometimes, in order to secure greater leverage, the handles thus supplied were unscrewed from the motor, and others and longer ones were substituted therefor; that the tools were kept in a toolroom in charge of the foreman of the shop; that, when tools were required, application was made to him, and he either directed the applicant to the place where the tools could be obtained or he got them for him.

The defendant in error testified that he had assisted in this and similar work before the time of the accident; that on the day of the accident 'the handles were not the same'; that the handle which the boiler maker held was a factory-made handle, while the one which he held was a piece of gas pipe; that he had never before seen a piece of pipe like this on one of those motors. He admitted that the machine was supplied with a regular handle for a helper, and that the one which he was using was not a regular handle; that it was lighter than the regular handle, and that he had never known one of the regular handles to break; that he never before had worked with one of these motors with anything else than the regular handle. He admitted that he had read and understood the rule of the company that employes 'are required to see for themselves that the machinery or tools which they are expected to use are in proper condition for the service required, and, if not, to put them in proper condition, or to see that this is done before using them,' and that he assented to this requirement before entering into the company's employment.

Andrews, the boiler maker, testified from his experience as a boiler maker that the pipe which the defendant in error used that day was not of sufficient strength to encounter the exertion required. 'I say that because it broke. The man using the machine could not tell by looking at the pipe. He could only tell after it was broken or taken out. He could tell by taking it out and looking at it, but that was not done when Altimus was hurt. It was not customary to take handles out and look at the threads. ' Andrews also testified that the foreman sent him to work on this engine, and told him the tools were there on the boiler; that he went there, and found the air motor which was used; and that he never saw a handle like that one in a machine before, but that there was nothing about the handle to indicate that it was dangerous to use it. He testified he did not know who put the iron pipe handle in.

There was testimony that some of the employes of the plaintiff in error would at times substitute a piece of iron pipe for the regular handle in order to obtain greater leverage, and to render easier the task of holding the machine in position. There is no evidence, however, that the defendant in error knew of this practice, and he denied that he had ever seen or used an iron pipe handle prior to the day of the accident. If, as some of this testimony seems to indicate, it was a common practice thus to substitute an iron pipe handle for the regular handle, it behooved the company, in the exercise of its duty of inspection, to know of that practice, and either to prevent it or to warn its employes against the danger thereof. 'The master's duty to the servant requires of the former reasonable care and skill in furnishing safe machinery and appliances, and in keeping such machinery and appliances in a safe condition, including the duty of making inspection and tests at proper intervals.'

Comben v. Belleville Stone Co., 59 N.J.Law, 226, 36 A. 473; Labatt on Master and Servant, 154. Said the court in Brann v. Chicago, R.I. & P.R. Co., 53 Iowa, 595, 6 N.W. 5, 36 Am.Rep. 243:

'It will not do to say that, having furnished suitable and proper machinery and appliances, the corporation can thereafter remain passive. The duty of inspection is affirmative, and must be continuously fulfilled and positively performed.'

It is true that the master is not bound to anticipate injury from the use of simple appliances by an experienced workman, and it is held by many courts that the duty of inspection does not extend to the small and simple tools in everyday use, for the reason that the employe is supposed to be a competent judge of their fitness for use. Wachsmith v. Shaw Electric Crane Co., 118 Mich. 275, 76 N.W. 497. But the appliance which was in use by the defendant in error was not a simple or ordinary tool. It was a machine composed of several parts; and its defects, if any there were, were not exposed to view. The defect which caused the accident was not so patent as to be readily observed. It was a concealed defect, a weakness resulting from the fact that the threads in the pipe handle whereby it was screwed into the machine were cut so deep as to leave the handle of insufficient strength to meet the pressure which was exerted upon it. This weakness might perhaps have been discovered by the defendant in error upon unscrewing the handle and inspecting it; but he was not required to do that. It was not his duty to dismember the machine and search for concealed defects. He had the right to assume, unless he knew the contrary, that the iron handle which he found in the machine, which, notwithstanding that it was not a regular handle, was in use, and to all appearance belonged to the machine, was there under the direction of his employer, and that it was adequate for the purpose for which it was in use. The instruction which he received from the foreman was to use the machine which was there. The fact that the handle was different from the regular handle would not necessarily suggest to him that it was unsafe or defective. On the contrary, the natural suggestion might be that the substitution had been made advisedly, and for the reason that it was better adapted to hold the machine in place than was the regular handle.

Much reliance is placed upon the rule of the company requiring...