Rabe v. Consolidated Ice Co.

Decision Date25 February 1902
Docket Number32.
Citation113 F. 905
PartiesRABE v. CONSOLIDATED ICE CO.
CourtU.S. Court of Appeals — Second Circuit

John W Wolfe, for plaintiff in error.

Thomas D. Adams, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The plaintiff in error was the plaintiff in the court below, and brought this action to recover damages for personal injuries alleged to have been received by the negligence of the defendant. He was an employe of the defendant, assigned to attend certain friction apparatus in the elevator room connected with the defendant's ice house. In the same room, but at some little distance from his post of duty there was a revolving shaft having a collar and a projecting set screw. The plaintiff had no duties with respect to this part of the apparatus, or which would take him to the place at which the collar and set screw were. Nor did any of the employees have any occasion to go there except to oil or repair the apparatus when the shaft was not in motion. While the plaintiff was attending to his ordinary duties, he observed a rope winding upon the shaft near the set screw which had been thrown there by the inadvertence or carelessness of some of the employes, and as the rope endangered the apparatus the plaintiff immediately went to it, and attempted to remove it. In the attempt he was badly hurt, the set screw being the cause, or a contributory cause of the accident.

By statute (Laws N.Y. 1897, c. 415) it is provided, among other things, that 'shafting, set screws and machinery of every description shall be properly guarded' by the owners of factories where machinery is used. The statute declares that the term 'factory' shall be construed to include also 'mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor.'

It is insisted for the plaintiff in error that upon the trial of the action the court below erred in instructing the jury that the factory statute had no application to the case, and the only assignment of error is based upon the exception taken to that part of the judge's charge. The material part of the judge's charge was as follows 'The controversy upon the part of the plaintiff is based upon the negligence of the defendant in failing to guard the set screw at the free end of this revolving shaft, and in that connection the law of the state of New York of 1897 has been called to your attention, which I think has been correctly stated as providing that all set screws in manufactories where operatives are employed shall be guarded. Or course, you appreciate just what this set screw is. In this case it was placed there to fasten a collar so that it would not revolve,-- so that it would stay upon the larger motive power shaft,-- which, according to the testimony, was revolving at the rate of from 42 to 125 revolutions a minute. The head of the screw protrudes above the collar, and when rapidly revolving it may not be seen by the operative. It is in such a situation that it would be apt to catch upon anything that was thrown in its way. This law provides that such set screws shall be guarded, but I think I will charge you, as a matter of law, that the law of the state of New York in this regard has no application whatever to this controversy for many reasons which it is unnecessary for me to detain you with. As I have said before, it is a rule of common law, irrespective of any statute of the state, that machinery must be safe. In the case of a set screw, it may be dangerous or safe according to the locality in which it is placed, and according to the parties who are called upon to work upon the machine; and that, I think, is a question which, under all the circumstances of the case, should be submitted to you to determine. Of course, if this set...

To continue reading

Request your trial
3 cases
  • Sanders v. Quercus Lumber Company
    • United States
    • Missouri Court of Appeals
    • 30 January 1915
    ... ... It ... falls within the purview of Sec. 7828, R. S. 1909. Bogard ... v. Tyler, 55 S.W. 709-905; Rabe v. Consoldated Ice ... Co., 113 F. 905; Carlin v. Western Assurance ... Co., 57 Md. 515; Lamborn v. Bell, 18 Colo. 346; ... Memphis Gas Light Co ... ...
  • Woolfe v. Ohio Oil Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 12 February 1923
    ...by section 1027, G.C., and with which employees may come in contact. Thomas v. R.R. Co., 112 Minn. 360, 128 N.W. 297; Rabe v. Ice Co., 113 F. 905, 51 C.C.A. 535. It also claimed on behalf of defendant in error that even if section 1027, G.C., applies, plaintiff elected to accept compensatio......
  • Casey v. Barber Asphalt Paving Co.
    • United States
    • U.S. District Court — District of Washington
    • 1 November 1911
    ...be protected consistent with the reasonable operation of the particular factory which was engaged in business.' In Rabe v. Consolidated Ice Co., 113 F. 905, 51 C.C.A. 535, in speaking of the New York factory act, the court 'The purpose of the statute is to throw a safeguard around the workm......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT