Phx. Printing Co. v. Durham

• Decision Date: 06 February 1912
• Docket Number: Case Number: 1564
• Citation: 1912 OK 143,32 Okla. 575,122 P. 708
• Parties: PHOENIX PRINTING CO. v. DURHAM.
• Court: Oklahoma Supreme Court

1912 OK 143

122 P. 708

32 Okla. 575

PHOENIX PRINTING CO. v. DURHAM.

Case Number: 1564

Supreme Court of Oklahoma

Decided: February 6, 1912

Syllabus

¶0 1. MASTER AND SERVANT--Injury to Servant--Negligence of Master. While under section 6, of article 23, of the Constitution, contributory negligence and assumption of risk are questions of fact to be submitted to the jury, this section does not apply to the primary negligence because of which a recovery is sought, and where there is no evidence reasonably tending to show that a defendant is guilty of negligence, it is error for the trial court to submit the issue to the jury.

2. SAME--Presumption of Negligence. In an action by an employee against his employer, the fact of accident carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact for the injured employee to establish by the evidence.

3. SAME--Use of Machinery--Presumptions. A master has some discretion concerning the kind of machinery which he will use. He may use new or old machinery as he likes. He may use an old pattern or a new one as he pleases, provided the machinery which he uses is sound and performs the work which it was designed to do, and mere proof that he is using machinery of a certain kind, and that an accident happens in the use of it, does not tend to show negligence, unless it is coupled with some evidence--not mere speculation--that it is not properly performing its function.

4. SAME-- Evidence. The evidence examined, and held insufficient to justify the submission of the case to the jury.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Wiley B. Durham against the Phoenix Printing Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

J. B. Furry and P. L. Soper, for plaintiff in error.

Bailey & Wyand and Chas. A. Moon, for defendant in error.

AMES, C.

¶1 The question involved in this case is whether or not the trial court should have sustained the defendant's motion for a directed verdict. In order to determine this question it is necessary to clearly state the facts. The plaintiff was a bright, capable young man, about 20 years of age, who had been employed by the defendant a number of months, the last five or six of which were in the capacity of assistant pressman. The defendant was engaged in the business of printing a daily newspaper in the city of Muskogee, and in its business operated a sixteen-page Goss Rotary press. This press included amongst its parts, two heavy rolls or cylinders, running parallel with the floor, one placed immediately over the other and revolving toward and so close to each other as to carry a sheet of paper when started through. The press was so constructed as to print a four, eight, twelve, or sixteen-page paper without the attachment, the use of which is alleged to have caused the injuries in this case. In printing a six, ten, or fourteen-page paper, it was necessary to use this attachment, which is termed in the evidence a "paster," and the purpose of which was to paste on the extra sheet as the sheets passed through the press. At the time of the injury the paster was in use, and the injuries occurred by reason of the use of it. The paster consisted of two parts, one a paste box, in which the paste was placed, and the other a small disc or wheel, one edge of which revolved through a slit in the paste box, and the other touched one of the large cylinders so lightly as not to tear the paper as it passed through. This disc, revolving through the edge of the paste box, would carry the paste to the paper as it passed over the cylinder. The disc was run by friction; that is to say, its edge was placed so close to the large cylinder that as the large cylinder revolved its contact with the face of the small disc would cause it to revolve. The paste box was removable. When it was in use it was fastened on a small rest, just in front of the upper cylinder, by means of set screws, which were screwed into it from the bottom. When the extra sheet was not being used, this paste box would be removed entirely. When the paste box was set too close to the large cylinder, naturally the small disc, constituting a part of the paster, would tear the paper, and when the paste box was set too far from the large cylinder, the contact would not be made and the paste would not be applied. For this reason it was necessary to adjust the paste box accurately and to keep it properly adjusted by loosening the set screws and moving it nearer to or further from the large cylinder. The heads of the set screws holding the paste box were octagonal in shape and were adjusted with a wrench. The plaintiff was injured while in the act of adjusting this paste box with the machinery in motion. As he did so, the wrench slipped off the head of the set screw, and as he was pressing his hand toward the rolls when the slip occurred, his hand pressed in between the rolls and was drawn through and crushed so badly that his arm had to be amputated about two inches above the elbow.

¶2 The negligence alleged by the plaintiff is that the defendant should have propelled the paster by means of a shaft and pulley, instead of contact or friction, and that a brake should have been provided to stop the rolls more quickly. There was no evidence tending to show that the latter was practicable, but the evidence showed that there was an attachment provided by the manufacturers of this press by which the paste wheel or disc was propelled independent of friction. This attachment consisted of a shaft and pulley, operated with a belt, which kept the paste wheel revolving independent of its contact with the cylinder. This press had been in use by the defendant about two years, during which time this attachment had never been used; but after the accident it was put into use. It also clearly appears from the evidence that this belt and pulley merely operated in the disc or paste wheel, and did not in any way touch the paste box. This same press had been used in Oklahoma City prior to its use in Muskogee. When in use there the pulley and belt were attached, and the evidence is uncontradicted that during that time it was necessary to adjust the paste box in the same manner above described, and that it had to be done practically every time it was used.

¶3 The evidence fails wholly to show that there was any defect in the machinery used, or that there was any element of unsafety in the place where the work was done; but, on the contrary, it affirmatively shows that the management of the defendant had at all times furnished to the pressman and his assistant every facility and convenience requested by them, and that no request for a change in the method of this attachment had ever been made. The evidence also affirmatively shows that, in adjusting the paste box by means of this octagonal set screw, the pressman could exert his force parallel with the cylinders, instead of perpendicular to them. The paste box, the set screw, the wrench, and the cylinders were all in good condition, and there is no explanation of the accident further than that the wrench slipped off the head of the set screw, and plaintiff's arm, by reason of its own force, went into the rolls.

¶4 The defendant's answer consisted of a general denial, a plea of contributory negligence, and a plea of the assumption of risk. At the close of the evidence the defendant requested the court for a peremptory instruction, which was overruled, and the jury returned a verdict for the plaintiff for $ 2,750. The accident occurred after statehood.

¶5 While it is manifest that these injuries resulted from a risk assumed by the plaintiff, it is not necessary for us to consider that aspect of the case, in view of the conclusion we have reached upon the motion to direct a verdict.

¶6 Under section 6 of article 23 of the Constitution, the defense of contributory negligence and of assumption of risk must be submitted to the jury. Whether the court should sustain a motion for new trial, where the jury has manifestly found against the law and the evidence on these issues, is a question which we need not now determine.

¶7 The law, however, does not require the primary question of the defendant's negligence to be submitted to the jury unless there is evidence reasonably tending to support the plaintiff's burden of proof on this subject. If the evidence reasonably tends to show that the defendant is negligent, then these defenses must be submitted to the jury. But until the evidence reasonably tends to show negligence on the part of the defendant, there is no issue which should go to a jury. Solts v. Southwestern Cotton Oil Co., 28 Okla. 706, 115 P. 776.

¶8 It is likewise true that as between master and servant the fact of accident carries with it no presumption of negligence. In the Solts case, just cited, the court quotes on this point from the Supreme Court of the United States, in Patton v. Texas, etc., R. Co., 179 U.S. 658, 21 S. Ct. 275, 45 L. Ed. 361:

"The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for

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