Sowards v. American Car & Foundry Co.
| Decision Date | 16 November 1909 |
| Parties | SOWARDS v. AMERICAN CAR & FOUNDRY CO. |
| Court | West Virginia Supreme Court |
Submitted June 4, 1909.
Syllabus by the Court.
A master is liable for injury to a servant from defective machinery, not for danger only, but only for negligence. The fact of such injury will not alone impose liability on the master.
A master is not bound to furnish the very best and safest machinery and appliances for his servant. So they be such as are reasonably safe, and may be safely used with due care on the part of the servant, the master is not liable for injury to the servant therefrom. The master is not liable for mere error of judgment.
A master using machinery that is defective is not liable for injury to his servant from it, unless the master knows, or under the circumstances should know, such defectiveness.
When in an action for tort, the evidence is such that a verdict for plaintiff should be set aside, the court, if asked should direct a verdict for defendant, and, if it refuses the appellate court will set aside judgment and verdict, but will not render final judgment for defendant, but will remand for a new trial, unless it very clearly appears that the plaintiff cannot better his case on a new trial.
Error to Circuit Court, Cabell County.
Action by Opha Sowards against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error. Reversed.
Anderson, Strother & Hughes, for plaintiff in error.
Null & Higgins, for defendant in error.
Opha Sowards was in the employ of the American Car & Foundry Company. He was one of those operating a drill press, and, his arm being broken while at work, he sued the company for damages and recovered $2,000, and the company brought the case to this court. Upon the surface or table of this machine (the drill presser) are laid pieces of iron for the purpose of drilling holes in them. This is done by upright drills with boring or drilling bits fastened in the drills. These drills revolve. The bits are held fast in place by means of set screws screwed into the shanks of the drills. At one end of the drill presser were two drills. These two drills, by mere guess or estimate evidence, are six to eight inches apart, but by actual reliable measurement fifteen inches. Sowards says he would The set screws protrude from the drills, and the two in these two drills at the end of the table of the drill press, to the right of the operator, take up about two inches, leaving balance of the fifteen-inch space clear. At the other end of the table were two like drills, the space between the second of the other two drills at the right-hand end of the table and the third drill nine feet along the table and four up and down. Behind the drills were pipes leading to the bits, with stopcocks, above the bits, used for letting water into the iron where the bits worked, for the purpose of cooling the bits as they would become heated from friction. These stop or water cocks were to the left of the drills, more handy to the operator's left hand. Sowards reached around the second bit with his right hand to open a stopcock to let water to the bit, and in so doing his sleeve was caught by the nut or head of the set screw in the second bit, and his arm was broken. Sowards had been working for the company a considerable time, but at this particular work only a week. He worked in the day, others at night, at this machine. At night the set screw in the second drill broke, and the hands procured another one and fastened it in the drill in place of the broken one. Sowards resumed work at 7 o'clock next morning, and worked at the drill till 2 o'clock, when the accident happened. He says he did not know that another set screw had been put in the drill. It was put in, not by any manager or superintendent, but by the hands without authority. It is not claimed that the machinery was defective, or that this new set screw was defective or faulty. The sole grievance, on which liability is asserted, is that the new set screw was longer than its predecessor, and protruded farther from the drill than did the former one, and was more likely to catch Sowards' arm than it. The evidence as to the length of this set screw, its additional protrusion or extension from the upright drill, varies. Sowards says, "It stuck out something like one inch and a quarter or one inch and an eight." A witness for plaintiff, Callicott, says that the set screw stuck out about one inch further than the former one. Johnson, a witness for the plaintiff, says that the set screw that had been in the drill protruded about one inch and an eighth, and the new one a quarter of an inch more. Another witness for plaintiff, Wood, says the new one protruded 1 1/4 or 1 1/2 inches. So, the increased length or additional projection of the substituted set screw was one-fourth of an inch by plaintiff's evidence. The set screw that caught Sowards was not produced, nor its exact length ascertained. It is doubtful whether it protruded any more than the former one.
Upon a demurrer criticism of the declaration is made; but counsel do not specify its defects. I think it questionable in the respect that it does not distinctly aver that Sowards' arm was broken from or because of the set screw. It does not say how or from what the hurt came, except inferentially. It is likely bad for this.
The defendant was refused an instruction to find for it. Under this instruction we must decide the merits by the evidence. Is it possible that the change of a set screw of the small increased length of one-fourth inch can fix negligence upon the defendant and put heavy damages upon it? We must be able to fix negligence upon the company. We held, in Newhouse v. Railroad Co., 62 W.Va. 562, 59 S.E. 1071, that: "Generally, as between master and servant, negligence will not be imputed from the circumstance alone of injury due to defective machinery or appliances; but some affirmative acts of negligence, either of omis sion or commission, must be shown." The law everywhere, to make the master liable, says that mere injury from even defective machinery is not enough; but culpable negligence must be proven. 20 Am. & Eng. Ency. L. 87; 26 Cyc. 1411. See Stewart v. Railroad, 40 W.Va. 188, 20 S.E. 922. Under this rule, does the use of this set screw, even if the master had ordered its use, fix negligence upon the master? The slight difference between the two set screws? If so, the master must not vary, in the slightest, his instruments. If so, he is made to guarantee the safety of his servants at all hazards; but we know that the master is not required to do so. Stewart v. Railroad, 40 W.Va. 188, 20 S.E. 922; Reese v. Wheeling, etc., 42 W.Va. 333, 26 S.E. 204. The master does not guarantee that his appliances are free of danger. Danger lurks in operating all machinery, let the master do his utmost for the safety of his servants. The servant assumes dangers inseparably connected with work. The master is answerable only for negligence. Labatt, Master & Servant, p. 112. Then, was this company guilty of negligence in changing the set screw so that it occupied one-quarter of an inch more than the former one of the fifteen-inch space between the two drills? Giebell v. Collins Co., 54 W.Va. 518, 46 S.E. 569; Seldomridge v. C. & O. Co., 46 W.Va. 569, 33 S.E. 293. Not bound to insure absolute safety of machinery. Bailey, Master & Servant, 14. It is enough if the master furnish with reasonably safe and suitable appliances. He need not furnish "those of a particular kind." 20 Cyc. 1107. "The master is held liable only when the thing used is so hazardous as not to be fit for use." Bailey, Master & Servant, 25, 26. Such the principle propounded in Giebell v. Collins Co., 54 W.Va. 518, 46 S.E. 569, and Berns v. Coal Co., 27 W.Va. 286, 55 Am. Rep. 304.
Who can say that this set screw could not have been used with safety by the exercise of due care? Who will say that it was so hazardous as to be unfit for use? Not a scintilla of ev idence proves this. A master is not bound to adopt any particular instrumentality. Labatt, Master & Servant, § 35. In this matter the law does not require of the employer extraordinary or superhuman care, but only ordinary care such as prudent men exercise. Hoffman v. Dickinson, 31 W.Va. 143, 6 S.E. 53; 20 Am. & Eng. Ency. L. 74; Southern R. Co. v. Mauzy, 98 Va. 692, 37 S.E. 285. The master is held only for such danger as is likely to happen, not that every possible accident or contingency shall be anticipated and guarded against. Bailey, Master & Servant, 18; 20 Am. & Eng. Ency. L. 92. "That an implement is new and requires a different kind of management by the person using it is no reason against its introduction, and an employé is charged with knowledge of its visible qualities and the ordinary working and effect of those qualities." Gulf R. Co. v. Williams, 72 Tex. 159, 12 S.W. 172. "The fact that a master uses different types of the same kind of appliances does not import...
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