Shenandoah Abattoir Co. v. Sustock

• Decision Date: 14 February 1917
• Docket Number: 2158.
• Citation: 239 F. 284
• Parties: SHENANDOAH ABATTOIR CO. v. SUSTOCK.
• Court: U.S. Court of Appeals — Third Circuit

239 F. 284

SHENANDOAH ABATTOIR CO. v. SUSTOCK.

No. 2158.

United States Court of Appeals, Third Circuit.

February 14, 1917

E. M Biddle, of Philadelphia, Pa., for plaintiff in error.

Clarence H. Goldsmith, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below William Sustock, a citizen of New York, recovered a judgment against the Shenandoah Abattoir Company, a corporation of Pennsylvania. Thereupon the latter brought this writ, alleging error was committed by the court in refusing its request for binding instructions.

The plaintiff was employed by defendant to operate a machine to clean the intestines used in its sausage factory. To do so the intestines were inserted by the workmen between a slow revolving drum and a fast revolving spindle. While so inserting one, the plaintiff's hand was caught, drawn into the machine, and permanently injured. The alleged negligence of defendant, involved in the issue before us, was the absence of a guard on the machine when plaintiff was injured. Of the duty of the defendant, under the Pennsylvania statute (Act May 2, 1905 (P.L. 355) Sec. 11), the pertinent extract from which is quoted on the margin, ^[1] to place a guard on this machine, and of the fact that it did furnish such guard, there is no question. The trouble arose in an interim when the guard was removed while the machine was being repaired. The proofs showed that before the accident the spindle and drum had gotten out of proper adjustment and the machine worked badly. A machinist, whose duty it was to adjust the machine, had been called in and was at work adjusting the bearings of the drum and spindle when the accident occurred. To make such adjustment, it was necessary to remove the guard and this had been done. The plaintiff who did several kinds of work about the factory, but whose regular work was at this machine, came into the room and, while the mechanic was readjusting the bearings of the unguarded machine, attempted to run an intestine through it and was injured.

The legal side of this situation was properly summed up by the trial judge in these words:

'Now, the question for you to determine, under all the evidence in this case, all the evidence upon the part of the plaintiff and all the evidence upon the part of the defendant, is as to just what this man was doing. Was he operating this machine as a part of the ordinary work of that plant? or was he testing this machine as a part of the ordinary work of that plant? or was he testing this machine as a part of the work of the repair and adjustment of the machine, because I say to you as a matter of law that if at that time what he was directed to do and what he did do was the operation of this machine as a part of the business of the plant, there is evidence before you from which you can find that the defendant was guilty of negligence, and therefore responsible for the plaintiff's injury, because of the operation of that machine without a guard over these blades or paddles. But I say to you also as a matter of law that if that was not the work that was being done, but the work that was being done was a part of the repairs to the machine and the adjustment of it, and a mere testing of its operation to see whether or not the machine had been properly repaired and properly adjusted, then the absence of the guard is no evidence in this case on which you would be justified in finding the defendant to be guilty of negligence.'

Of these instructions, as a correct statement of the law in the abstract, the defendant does not complain if the facts were such as to warrant the submission of that question to the jury. What it does complain of is that the evidence before the court unmistakably showed that Sustock was helping adjust the machine by the test of running an intestine through, and was not engaged in his regular work when this accident happened. If such be the case, if the facts were such as to unmistakably show that the machine was being repaired, and that Sustock was working at repair and not regular work, then the court erred in denying the request of the defendant for binding instructions. We have carefully studied the entire proofs, and from such study we agree that the evidence so clearly showed that Sustock was engaged in repair work that no other inference could be reasonably drawn therefrom. They show that Sustock had worked on the machine for a long time, that on this particular day it had gotten out of working order, and that Lord, the mechanic whose duty it was to adjust it, was doing so. While Lord was engaged in such adjustment, Sustock came into the room where the machine was and told Stuckis, the foreman, who was testing the machine as Lord adjusted it, that he was wanted in another room. The testimony of Sustock shows what followed:

'Q. You did go into the gut room, and what did you see there? Did you go up to this machine? A. I saw John Stuckis standing alongside of the machine with a piece of intestine in his hand. Q. The machine that you were afterwards hurt on? A. Yes, sir. Q. What was Stuckis doing at that time? A. He was standing there with the intestine in his hand. I think he was about to insert it into the machine. Q. In the way that you have described? A. Yes, sir. Q. Who else were there at the time? A. John Lord and Dick Jones. Q. Who was Dick Jones? That is, what did he do around there? What was his work? A. He was fireman, I think, at that time. Q. That is the time I speak of. A. He was fireman. Q. Who was Lord? What did he do? A. He was mechanic of the building. Q. Did you have anything to do with the machinery there, or repairing it, or things of that kind, during the time you were there? A. Whenever I got orders to do it. Q. Were you a machinist? A. No, sir. Q. Did you ever get any orders to repair machinery? A. No, sir. Q. This man Lord was what? A. Mechanic. Q. Did he slaughter, or feed machines, or anything of that kind, at the time, or about the time, of this accident? A. No, sir; he was repairing all the machinery in the building. Q. Did he give his entire time to that work? A. Yes, sir. Q. And he was at this machine,

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