Stam v. Ogden Packing & Provision Co.

• Decision Date: 17 December 1918
• Docket Number: 3229
• Citation: Stam v. Ogden Packing & Provision Co., 53 Utah 248, 177 P. 218 (Utah 1918)
• Parties: STAM v. OGDEN PACKING & PROVISION CO
• Court: Utah Supreme Court

177 P. 218

53 Utah 248

STAM v. OGDEN PACKING & PROVISION CO

No. 3229

Supreme Court of Utah

December 17, 1918

On Petition for Rehearing, January. 11, 1919.

Appeal from the District Court of Weber County, Second District Hon. A. W. Agee, Judge.

Action by William Stam, an infant, by Evert Neuteboom his guardian against the Ogden Packing & Provision Company.

Judgment for plaintiff and denial of new trial. Defendant appeals.

AFFIRMED.

Boyd De Vine, Eccles & Woolley for appellant.

Joseph E. Evans and C. R. Hollingsworth for respondent.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff, William Stam, an infant, by his guardian, Evert Neuteboom, brought this action for the recovery of damages resulting from injuries received while in the employ of defendant at its packing plant in Ogden City, Utah. The defendant was engaged in the business of slaughtering animals and packing, dressing, and manufacturing meats, sausages, etc., derived wholly or in part from sheep, hogs, beeves, or other animals. The plaintiff's particular employment was in connection with a certain machine operated for cleaning guts of animals to be used as casings in the manufacturing of sausages. These guts will hereafter be called "casings," and the machine so operated the "casings cleaning machine." The machine consisted of a large roller attached to a flat table so situated that the top of the roller was on a level with the top of the table. This roller was about two feet in diameter. Above this were two rollers on the same level, each about five inches in diameter, containing knives so set in the rollers that when in rapid motion the knives would scrape and clean the casings. One of the small rollers revolved at a rate of about 1,500 revolutions a minute, the other small roller at about 3,000, and the large one below at about fifty. The machine was operated by an electric motor, and a switch for turning the current on and off was attached to the north wall of the room, a distance of fifteen or eighteen feet from the machine.

The plaintiff, at the time of the accident, was in the act of feeding the machine or placing the casings where they would be drawn between the rollers, when by some means his right hand was caught and drawn into the machine. His hand was cut and lacerated to such an extent as to require amputation, and later on a second amputation became necessary at a point about halfway between the wrist and elbow, by means of which plaintiff became and was permanently and seriously injured.

The specific acts of negligence alleged in the complaint and relied on were, in substance: (1) That the location of the electric switch above referred to was so far away from the machine as to render the person working thereat unable to conveniently shut off the current and stop the machine; (2) that in the exercise of ordinary care a safety plate should have been used so that the person working at said machine could not get his hand caught therein; (3) that defendant should have provided a safety device that could have been operated by plaintiff's foot so that the machine could have been quickly and instantly stopped; (4) that plaintiff was only sixteen years of age, was inexperienced in the operation of the machine, and was without knowledge as to the danger incident thereto, and in the exercise of ordinary care the defendant should have instructed the plaintiff and warned him concerning the danger, but failed to do so, and negligently ordered him to work faster at said machine, and on the day of the accident demanded that plaintiff do more work on said machine than he had been doing theretofore.

The defendant, answering the complaint, admits the plaintiff was in its employ, and that he was injured as alleged, but denies that defendant was negligent in any of the particulars mentioned. Defendant affirmatively alleges that plaintiff was guilty of contributory negligence, and that he assumed the risk.

The case was tried to a jury and a verdict rendered for plaintiff. Judgment was duly entered, motion for a new trial overruled, and defendant appeals.

Appellant assigns as error the refusal of the court to direct a verdict for defendant at its request, the giving of certain instructions to the jury, the refusal to instruct as requested by defendant, the making of certain remarks by the court, and the order of the court overruling the motion for a new trial.

At the close of plaintiff's testimony, defendant rested, and moved for a directed verdict. Several grounds were specifically stated, but in substance and effect they may be embodied in two propositions, to-wit: (1) That the negligence of the defendant was not proven; and (2) that the plaintiff by virtue of his experience, knowledge, and understanding of conditions and appreciation of danger, assumed the risk of whatever injury he sustained.

The court overruled the motion and submitted the case to the jury.

It becomes necessary at this point to review the testimony for the purpose of determining whether or not there was any substantial evidence upon which to base a verdict.

There was substantial evidence tending to show that the plaintiff was only sixteen years of age at the time of the injury; that he was foreign born, but was of average intelligence for a boy of that age; that he had been in the employ of defendant for about three months at the time of the accident which resulted in the injuries complained of; that during all that time he had been engaged as a feeder of the machine heretofore described; that he understood the operation of the machine and the danger incident thereto when it was in motion; that he had taught other employees how to operate it; that the machine was fed by putting the casings into the end of the machine instead of the side; that the plaintiff in feeding the machine would double the casings over his thumb to prevent their slipping from him; that the general description of the machine and premises was as heretofore stated; that it required two employees to operate the machine--one to feed it, or start the casings between the rollers, and the other to pull them through and take them away-- that on the morning of the accident another employee whom the plaintiff had instructed was engaged in feeding the machine but was operating more slowly than it had been done before; that the foreman of the defendant in charge of this particular work, being present, ordered the plaintiff to work faster in order to clean all the casings so that none would have to be thrown away; that the plaintiff immediately commenced feeding the machine faster as directed, and a few minutes thereafter his right hand was, by some means, caught between the rollers and drawn into the machine. The exact manner of the accident is not as satisfactorily explained by the evidence as one would desire whose duty it is to accurately present the facts. The testimony, however, tended to show that when the plaintiff, at the time of the accident, started the casings into the end of the machine, the casings whipped around the knives instead of passing through. This in some manner seemed to contribute to the accident. What did happen in this regard was unusual, and, according to plaintiff's testimony, had never happened before in his experience. There was much testimony in addition to that above stated relating to the premises and various devices in use not necessary to mention in detail.

By the assignment of error under consideration we are asked to find that there was no substantial evidence of negligence to submit to the jury, and also to find that plaintiff, under all the circumstances, must be presumed to have assumed the risk of the accident which resulted in his injury.

It is familiar doctrine in this jurisdiction and perhaps in nearly every other where the jury system prevails, that, if there is any substantial evidence whatever upon which to base a verdict, the court will not withdraw the case from the jury or direct what their verdict should be.

In this case it is clear to the court that the plaintiff's knowledge and understanding of the machine in question, the manner of operating it, and appreciation of the dangers incident thereto, were such that, if there had been no abnormal or unusual condition intervening at the time of the accident, he would, as matter of law, be held to have assumed the risk, and in such case many of the authorities cited by appellant would be in point, notably the following which we have carefully examined: E. S. Higgins Carpet Co. V. O'Keefe, 79 F. 900, 25 C. C. A. 220; Hickey V. Taaffe, 105 N.Y. 26, 12 N.E. 286; Ash V. Verlenden et al., 154 Pa. 246, 26 A. 374; Brown V. Adams & Sons Co., Ltd., 120 La. 119, 44 So. 1005; Berlin V. Mershon & Co., 132 Mich. 183, 93 N.W. 248; Loftus V. Dehail, 133 Cal. 214, 65 P. 379; Bohn Mfg. Co. V. Erickson, 55 F. 943, 5 C. C. A. 341; Fones V. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Hess V. Escanaba Woodenware Co., 146 Mich. 566, 109 N.W. 1058; Corning Steel Co. V. Pohlplatz, 29 Ind.App. 250, 64 N.E. 476; Wiggins V. E. Z. Waist Co., 83 Vt. 365, 76 A. 36, 25 L. R. A. (N. S.) 1220, 21 Ann. Cas. 1092; Lowcock V. Franklin Paper Co., 169 Mass. 313, 47 N.E. 1000; Carl Beghold V. Auto Body Co., 149 Mich. 14, 112 N.W. 691, 14 L. R. A. (N. S.) 609; East & West R. Co. V. Sims, 80 Ga. 807, 6 S.E. 595; Buckley V. Gutta-Percha & Rubber Mfg. Co., 113 N.Y. 540, 21 N.E. 717. Numerous other cases are cited by appellant to the same effect, but those enumerated above are sufficient for our purpose.

It was made quite clear, by testimony which we have not referred to in detail, that the charges of negligence as to the location of the switch, the failure to provide a foot device for stopping...