Persinger's Adm'x v. Alleghany Ore & Iron Co

• Citation: 46 S.E. 325,102 Va. 350
• Court: Supreme Court of Virginia
• Decision Date: 21 January 1904
• Parties: PERSINGER'S ADM'X . v. ALLEGHANY ORE & IRON CO.

46 S.E. 325

102 Va. 350

PERSINGER'S ADM'X .

v.ALLEGHANY ORE & IRON CO.

Supreme Court of Appeals of Virginia.

Jan. 21, 1904.

MASTER AND SERVANT—INJURIES—NEGLIGENCE—ANTICIPATED DANGERS.

1. A contrivance for washing ore consisted of a large box containing machinery, and there unnecessarily projected into the box the end of an engine shaft on the end of which was a small "jagger, " or point of iron about an eighth of an inch by three-sixteenths of an inch in size. A servant, who had been in the box repairing some of the machinery, was leaving the box, when his clothing caught on the "jagger, " and, the shaft being in motion, he was killed. The point where the repairs were being made was 32 inches from the end of the shaft, and the space between the side of the box and end of the shaft, which space he had to pass through on leaving the box, was 3 1/2 feet. Held, that the master was not liable, as the accident was not a probable consequence of the conditions.

Error to Circuit Court, Botetourt County.

Action by the administratrix of W. D. Persinger against the Alleghany Ore & Iron Company. Prom a judgment in favor of defendant, plaintiff brings error. Affirmed.

Benjamin Haden, for plaintiff in error.

A. A. Phlegar and P. H. C. Cabell, for defendant in error.

BUCHANAN, J. This is an action to recover damages for the killing of William D. Persinger, caused, as his administratrix claims, by the defendant company's negligence.

Upon the trial of the cause in the circuit court the defendant, without introducing any testimony, demurred to the plaintiff's evidence. The court sustained the demurrer and rendered judgment for the defendant. To that judgment this writ of error was awarded.

The material facts are the following: The defendant owns and operates, among other things, machinery for washing ore, and Mr. Persinger was employed by the defendant to oil the machinery and to do such other work as he might be directed to perform. The part of the washer in which Mr. Persinger was killed was at least 6 feet wide and about 30 feet long, as counsel seem to agree. The depth of the box does not appear from the record. Extending through this box length-wise were two logs, parallel to each other, 1 foot each in diameter, and about 30 inches apart. To these logs were attached spiral flanges or paddles about 8 inches long. The logs ran east and west, and to the west end of each log was attached an iron gudgeon, which rested on the end of the box. Upon these gudgeons were fixed gear wheels, which were driven by means of a main shaft by a steam engine located on the south side of the box. The ore as it came from the mines was dumped into the box, through which flowed a stream of water. The logs revolved in opposite directions. The paddles on them stirred up the ore, and by reason of their spiral arrangement forced the ore to one end of the box, the water carrying off the dirt to the other end. On the south side of the box, and 32 inches from the west end of it, was a pulley on the engine shaft, over which was a band which operated the washer. This shaft from the engine projected into the box, unnecessarily, 28 inches, the end of it reaching an inch or two beyond the north side of the nearest log. In the end of the shaft was a key set or groove for fastening the pulley or wheel which might be placed thereon. On one of the corners of the key set, and on the inner side thereof, was a little "jagger, " or point of iron, about one-eighth of an inch by three-sixteenths of an inch in size, and made apparently by a blow from a hammer on the end of the shaft. Prom the end of the shaft to the north side of the box was about 3 1/2 feet.

On the day of the accident one of these logs broke, and Mr. Persinger was ordered to aid other employes in removing the logs from the bed when not engaged in oiling the machinery of the washer, which continued its work except in that bed. In order to remove these logs, it was necessary to take the gear wheel off the west end of the log, over which the engine shaft projected. There was some difficulty in getting the key out which held the wheel in its place. Three other men, at least, had attempted to get it out. Two of them had gone out of the bed to get a more suitable implement to work with. The other employe, Rock, and Mr. Persinger attempted to get the key out, and were unable to do so with the key drift which they had. They determined to go out of the box also, and get...