Ockey v. Bingham-New Haven Copper & Gold Mining Co.
| Decision Date | 03 January 1916 |
| Docket Number | 2561 |
| Citation | 154 P. 586,47 Utah 315 |
| Parties | OCKEY v. BINGHAM-NEW HAVEN COPPER & GOLD MINING CO |
| Court | Utah Supreme Court |
Appeal from District Court, Third District; Hon. C. W. Morse, Judge.
Action by Ross Ockey against the Bingham-New Haven Copper & Gold Mining Company, a corporation.
Judgment for defendant. Plaintiff appeals.
REVERSED.
Willard Hanson and Marioneaux, McKinney & Powers for appellant.
King & Nibley for respondent.
OPINION
STATEMENT OF FACTS.
This is an action for personal injuries. It is alleged in the complaint that plaintiff was, on the 2nd day of November, 1911, at work for the defendant, a corporation, in its concentrating mill at Bingham Canyon, Utah; that it was a part of his employment to adjust belts on certain pulleys and to replace the belts thereon when they, by reason of the movements of the pulleys, or other causes, slipped or came off; that the pulleys were secured and adjusted on a certain line shaft in the mill, at the end of which were two collars, one on each side of the end bearing; that the collars were fastened to the shaft by means of set screws; and that these set screws, when properly made, would fit into the collar, and the heads thereof would not project beyond the collar. It is further alleged that it was the duty of defendant to use set screws that would properly fit into the collars and that would not project beyond the surface thereof; that defendant carelessly and negligently used a set screw in one of the pulleys the head of which projected above and beyond the collar a distance of about one inch, and that it was unknown to plaintiff, who believed that the set screw was properly made and that it properly fitted into the collar on the line shaft; that plaintiff, while in the exercise of due care and in the performance of his duties adjusting the belt on a pulley, had the leg of his trousers caught by the set screw by reason of its projecting above and beyond the collar of the shaft, and he was thrown against the timbers of the mill and violently against the pulley and shaft; that he received certain injuries (describing them); that plaintiff prior to and at the time he was injured was strong and able-bodied, and was capable of earning, and did earn, $ 3.50 per day.
Defendant answered, admitting that plaintiff was on November 2, 1911, employed by defendant, that plaintiff received "slight injuries" while at work for defendant in its mill, and that he was earning $ 3.50 per day, but denied each and every allegation alleging negligence on the part of defendant. Defendant also pleaded the defense of contributory negligence and that of assumed risk. Defendant, at the conclusion of plaintiff's evidence, moved the court for non-suit on the following grounds: (1) That the evidence failed to show negligence on the part of defendant; (2) that the evidence showed that plaintiff was guilty of contributory negligence; and (3) that he assumed the risks of the hazards as dangers under which he was injured.
The motion for non-suit was granted, and judgment entered in favor of the defendant. Plaintiff appeals.
McCARTY, J. (after stating the facts as above).
The mill in which appellant received the injuries complained of was several stories in height. The concentrating tables were on the main floor, and the jigs were located on the floor above. Between the main floor and the jig floor was a platform or subfloor upon which were a pump and an electric motor. A line shaft extended along the subfloor practically the entire length of the building. This line shaft was fastened by bearings to the pillars or upright timbers that supported the sub or jig floor. The concentrating tables were operated by power transmitted from the motor on the subfloor to the tables by means of belts connected with and extending from the pulleys on the tables to the pulleys on the line shaft. On each side of the bearings and on each side of the pulleys on the line shaft were collars called safety collars. These collars were to prevent the line shaft from moving out of the bearings and the pulleys from slipping laterally along the shaft, and were held in place by means of set screws which were countersunk in the collars. The evidence shows that all set screws in the mill except the one mentioned in the complaint were set in safety collars; that is, collars in which the head of the set screw can be countersunk so as not to project beyond the collar. The line shaft was connected to the electric motor referred to herein, which motor could be stopped, and started by means of a switch, and also a clutch on the shaft. The usual manner of starting the shaft in motion was to turn the current through the motor and then throw the clutch, which permitted the power to be applied on the shaft. The shaft could be stopped either by throwing the clutch or stopping the motor.
Appellant was employed as jigman, and also as a shift boss. He was during the shifts on which he worked in control of the operations of the mill and directed the men working therein as to their duties. A Mr. Bouchelle was foreman at the mill, and gave orders to the different bosses, including appellant. The foreman was on shift during the daytime, but not in the nighttime. He was not in the mill at the time of the accident, which occurred at night. During the day shift there was a "repair man" in the mill whose duty it was to keep all of the machinery in repair. The repair man worked in the mill under the directions of the mill foreman. The day before the accident a Mr. Pressler, while at work in the mill, was caught by the set screw that injured plaintiff. On the night in question, and a short time before the accident occurred, owing to some trouble with the machinery on one of the lower floors, the motor stopped, which caused the line shaft to cease revolving, thereby stopping the movement of the tables. Appellant left the jig floor and went down to the floor where the trouble existed to ascertain if he could remedy it. He assisted the man there to adjust the machinery and to start it in operation. As he was returning to the jig floor he observed that the belt was off the pulley at the first or end table. He requested one of the men at work in the mill to assist him in replacing the belt onto the pulley. To do this appellant had to return to the jig floor, and from there crawl underneath some of the timbers along the subfloor where the line shaft was located. He proceeded to the point where the line shaft fitted into the bearing, and straddled the bearing on the timber, and commenced to put the belt onto the pulley by using a stick--a usual method there of putting on a belt. As he was thus engaged the set screw herein referred to, that projected above the collar, caught his clothing and threw him against the shaft. Appellant being unable to disengage his clothing from the set screw, it cut and tore the muscles of his leg. The extent of the injury is not in controversy, and hence we shall not review the evidence relating thereto. When he was caught by the set screw appellant called for help. Other workmen, hearing the call, threw the motor off and came to his assistance. The line shaft, when the mill was in operation, made 240 revolutions per minute, and when so revolving, the set screws in the safety collars could not be seen. As stated, the day before appellant came in contact with the set screw on the occasion referred to a Mr. Pressler, who was working in the mill, had his clothing torn and ripped by coming in contact with the set screw that injured appellant. Appellant testified that he did not know, prior to the accident in which he received the injuries complained of that the set screw in question extended above and beyond the safety collar. And there is no evidence from which it may be inferred that appellant had any knowledge of the condition of the set screw until after the accident.
The undisputed evidence precludes us from holding that respondent was, as a matter of law, free from...
To continue reading
Request your trial