Stone & Webster Engineering Corp. v. Melovich

• Decision Date: 03 February 1913
• Docket Number: 2,160.
• Citation: 202 F. 438
• Parties: STONE & WEBSTER ENGINEERING CORPORATION v. MELOVICH.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 438

STONE & WEBSTER ENGINEERING CORPORATION v. MELOVICH.

No. 2,160.

United States Court of Appeals, Ninth Circuit.

February 3, 1913

Kerr &amp McCord, of Seattle, Wash., for plaintiff in error.

Herbert W. Meyers and Charles A. Enslow, both of Seattle, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The parties will be designated here as they were in the court below. The plaintiff, while in the employment of the defendant, lost his arm while oiling the bearings of certain cogwheel shafts. In his complaint he alleged negligence, in that the cogwheels were not properly guarded. The defendant denied the negligence, and set up the defenses of assumption of risk and contributory negligence. The jury returned a verdict for the plaintiff, and thereupon judgment was rendered.

The cogwheels in which the arm of the plaintiff in error was injured were used in operating an elevator for carrying gravel from a pit to a gravel-washing machine, and were placed about 25 feet above the ground. About 4 feet beneath the cogwheels was a platform, about 4 feet wide and 6 feet in length, covered with a shed. On either side of the platform timbers or supports were placed, about 4 feet above the platform. Across the platform extended two shafts, which rested upon those timbers. Upon each shaft were two cogwheels. On the outer shaft were two wheels, of 25 inches in diameter, and on the inner shaft were two wheels of 5 inches in diameter each, and the cogs interlaced. In oiling the bearings of the shaftings, the oiler stood upon the platform with his back to a large belt wheel and belt, the belt reaching as high as his neck, and with his face to the cogwheels. He used an oil can about 12 inches in length. The plaintiff oiled the bearings on his right hand facing the cogwheels, and thereafter he undertook to oil the bearings on the left side, and in so doing his clothing was caught in the revolving cogwheels, and his arm was drawn therein and crushed. He testified that he had to reach over to oil the inner shaft bearings, and that the boards were so nailed that he could stand but in one place that when the wheel was revolving he could not see the cogs. He said:

'It goes fast like the wind is blowing, and you could not see it.'

There was evidence that the plaintiff was an uneducated man, very slightly acquainted with the English language; that he was hired in the capacity of a common laborer; that he had no knowledge of machinery or implements other than the pick and shovel; that he had never worked about machinery, and had never seen a set of cogwheels before beginning to work for the defendant; that he had never seen a gravel machine; that he knew nothing about the parts of any machinery for concrete mixing; that he had been working three weeks for the defendant when the injury occurred; that his regular work was to tend a motor machine on the ground; that the said motor machine was boxed, so that its machinery was covered; that he oiled the said motor machine only when it was at rest; that he had been sent up to oil the cogwheels on the platform above two or three times before the time of the accident, but that he was given no instructions as to the manner of doing the work, nor of the danger that he might encounter in doing it.

The defendant urgently insists that its motion for an instructed verdict should have been allowed, on the ground that the dangers of the situation were known to the plaintiff and appreciated by him, and were therefore assumed by him as the risks of his employment; that the plaintiff had ordinary vision, and the machinery was plainly visible, and reference is made to his testimony, in which he said he knew that if he deliberately put his hand in a revolving wheel it would injure him, and added, 'Any crazy man would know better ' But there was testimony tending to show that the risk of the particular act which the plaintiff was engaged in performing at the time when he was injured was not known or appreciated by him. If it were true, as he testified, that he was...