Shumway v. Walworth & N. Mfg. Co.

• Decision Date: 09 January 1894
• Citation: 98 Mich. 411,57 N.W. 251
• Parties: SHUMWAY v. WALWORTH & N. MANUF'G CO.
• Court: Michigan Supreme Court

57 N.W. 251

98 Mich. 411

SHUMWAY v. WALWORTH & N. MANUF'G CO.

Supreme Court of Michigan

January 9, 1894

Error to circuit court, Bay county; George P. Cobb, Judge.

Action by James D. Shumway against the Walworth & Neville Manufacturing Company for personal injuries. There was a judgment for plaintiff, and defendant brings error. Affirmed.

J. E. Kinnane and Shepard & Lyon, for appellee.

T. A E. & J. C. Weadock, for appellant.

MONTGOMERY J.

Plaintiff sued for negligent injury. He was employed in defendant's factory, and engaged in running a planer. George E. Neville one of the officers of the corporation, had charge of defendant's factory, and employed and discharged men. On the 28th of November, 1890, plaintiff had been interrupted in oiling his machine by the necessity of moving some timber which had been placed so near to his machine as to interfere with his work. He started the machine, and passed some of the timber through. It was discovered that the machine was out of order. The plaintiff threw it out of gear, took the oil can and attempted to oil the machine from underneath, leaving his mitten on the surface of planer. In order to oil one portion of the machine, it became necessary for the plaintiff to put his hand between the spokes of one of the wheels connected with the gearing, and remove the cap of a box. While his hand was in this position, Mr. Neville turned on the feed motion. Plaintiff's hand was caught in the gearing, and he sustained the injury complained of. It was plaintiff's duty to see that the machine was properly oiled and adjusted, when being operated by him. The parties are not agreed as to the facts. The plaintiff testified that, when he started to oil the machine, Mr. Neville came up, and he passed him, leaving him standing in front of the machine. Mr. Neville, on the contrary, testified that the plaintiff and himself had been engaged in an effort to discover what was wrong with the machine, and in so doing had started and stopped the machine repeatedly; that he finally discovered the difficulty, which he found was a small knot of wood between the rollers and the crossbar of the bed of the machine. He looked around, and did not see the plaintiff. Saw that the oil can was not in its place, and supposed that the plaintiff had gone out of the mill to fill the oil can, or for some other purpose. That he took a probe, and drove the knot out, backed up the machine, threw the lever forward, and started the feed motion. It was this starting of the machine that caused the injury. The case was submitted under instructions which left the jury to decide-First, whether the act of Neville was or was not negligent; second, whether the plaintiff's attempting to oil that portion of the machine concealed from Mr. Neville's view, from the point where he stood, was negligence on the plaintiff's part contributing to the injury. The defendant's two principal contentions in this court are-First, that as a matter of law the plaintiff was guilty of contributory negligence, in placing himself in the position which he occupied without notifying Neville of his purpose; and, second, that Neville was, in what he did, a fellow servant of plaintiff, and, if guilty of negligence, it was not the master's negligence.

1. We are not prepared to hold, as a matter of law, that the plaintiff was guilty of negligence contributing to the injury. The jury, in answer to a special question, found that plaintiff was in charge of the machine at the time of the injury, and had the care of the machine, and the duty to keep it in order. This being the case, if he had no reason to anticipate the starting of the machine by Mr. Neville, it would be going far to hold that he was negligent in failing to anticipate such a possibility.

2. Was the act of Mr. Neville in turning on the feed motion that of a fellow servant of plaintiff? The defendant concedes, in effect, that Mr. Neville's relations to the defendant corporation and to the plaintiff were such as that for some purposes he might in law be regarded as a representative of the master, but that in the performance of the particular act of starting the machine he was acting in the capacity of a fellow servant; and the contention is that the question of whether the act was that of a master or of a fellow servant depends for its solution rather upon the nature of the act than upon the general scope or extent of the superior servant's...