Wabash Screen Door Co. v. Black

• Decision Date: 08 December 1903
• Docket Number: 1,204.
• Citation: 126 F. 721
• Parties: WABASH SCREEN DOOR CO. v. BLACK.
• Court: U.S. Court of Appeals — Sixth Circuit

126 F. 721

WABASH SCREEN DOOR CO. v. BLACK.

No. 1,204.

United States Court of Appeals, Sixth Circuit.

December 8, 1903

H. R Boyd, for plaintiff in error.

Walter Malone, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was an action to recover damages for the negligent killing of Milton E. Whitford. It was brought under the Tennessee statute in the local court by the administratrix, and removed on the application of the Wabash Screen Door Company, the defendant below, to the United States Circuit Court for the Western District of Tennessee. The trial judge refusing to direct a verdict for the defendant, the case went to the jury, and a verdict and judgment was recovered, which the court below declined to disturb.

At the time of the accident which resulted in his death Milton E Whitford was an oiler in the plant of the Wabash Screen Door Company, in Memphis. He was a young man, 20 years old, and had been employed for only about a month. In the basement of the plant there was a system of line and counter shafts carrying pulleys of different sizes, which, by means of belts, operated machines located upon the floors above. In oiling the machinery Whitford was required to pass along one of the shafts and near a certain wood split pulley, which had been made by the company and had been in operation some 75 days. When Whitford was in the vicinity of this pulley, it burst, flying into three pieces, and immediately afterwards he was found lying on the floor close to the line shaft unconscious with his skull fractured on one side and his scalp bruised on the other. Physicians were at once summoned by the company, and the young man removed to the city hospital, where a trephining operation was performed. He never recovered consciousness, and died within two days.

The case has been brought here for review, and the assignments of error go to the refusal of the court to take the case from the jury, and to the admission of certain testimony, coupled with certain charges touching the same.

1. It is urged the court erred in submitting the case to the jury, because, in the first place, there was no evidence of negligence on the part of the company; and, in the second place, if there was, no connection was shown by the proof between such negligence and the death of Whitford; that, there being no eyewitness to the accident, the jury should not have been permitted to speculate as to what caused the injury which resulted in his death.

The pulley was made by the company. The plaintiff below contended that the work of construction was improperly and negligently done, that the pulley was defective, that it burst of its own weakness, and that Whitford, without fault on his part and while in the discharge of his duty, was struck by one of the flying pieces and fatally injured. The jury found in favor of this contention. Now the company insists that the proof fails to show that the pulley was defective; but, if it does, it fails to show the specific defect which caused it to burst; and, if it does this, still it does not show that Whitford was struck by one of the flying pieces, for no one saw him hit; that, for aught that appears in the record, he might have been hurt by stumbling and falling into the pulley while approaching it, or by slipping and falling between the belt and pulley while oiling the idler above, in either of which events his skull might have been fractured on one side and his scalp bruised on the other.

The pulley was made by one Pingree, under the supervision of Brown, the superintendent of the factory, who was a witness in the case. It was a wood split pulley 42 inches in diameter, with a rim 6 inches wide and 2 5/8 inches thick, made of poplar cants, nailed and glued together, into which was set, by a plain dovetail about 3/4 of an inch deep, two oak arms. The pulley was made in two segments, each composed of an arm and a half of the rim, which were clamped together and to the shaft by means of bolts running through the arms.

The testimony of the plaintiff, including that of three expert witnesses, tended to show that the pulley was defective because it had only two arms, because the pieces of wood which composed the rim were not properly nailed and glued together, and because the connection between the arms and the rim by a plain dovetail of the depth mentioned was too weak. The pieces which once constituted the pulley were in evidence before the jury, and one of the experts pointed out to the jury how these pieces spoke for themselves respecting the structural defects of the pulley.

No expert was introduced by the company to testify that the pulley was properly constructed, or that similar pulleys were used elsewhere. Brown, the superintendent, was unable to point to any such pulley in operation elsewhere, except one he had made five or six years before for a factory in Michigan. Under the circumstances, we think the court below was right in submitting to the jury, under proper instructions, the question whether the pulley was defective and the company guilty of negligence in using it. So much for the pulley.

Now as to how Whitford was hurt. No one saw him struck down. The witness Johnson heard the pulley burst, and saw two pieces of the rim flying in opposite directions, one striking the ceiling and the other the floor. A third piece was found about four feet from the shaft. There was no wound or bruise on Whitford's body except those on the head, and his clothing was not torn. As to the injury on the head, eight witnesses for the plaintiff testified that he was wounded only on one side, while the two physicians called by the company testified there was a fracture on one side and a scalp wound on the other. One of the physicians, describing the fracture, used this language: 'Gentlemen, this is about where the blow was-- that is, the force of the blow that penetrated the skull, knocking the skull in. The fracture radiated upward towards the eye, and downward and backward towards the base of the skull.'

Such being in general the nature of the evidence, the court left it to the jury to determine whether the injury was the direct result of the breaking of the pulley, instructing them that the burden was upon the plaintiff to establish this fact, and, if they were not satisfied from the preponderance of the proof that the injury was so caused, they must find for the defendant. If it came from some mysterious cause, which they did not understand from the proof, or could not explain by the proof, then the plaintiff could not recover, no matter what the cause was. The jury was warned that the fact of accident carried with it no presumption of negligence. That was an affirmative fact, to be established by the plaintiff. Where the testimony left the matter uncertain, and showed that any one of a half dozen things may have brought about the injury, it was not for the jury to guess between these causes, and find that the negligence of the employer was the real cause, when there was no satisfactory foundation in the testimony for that conclusion. Respecting the theories advanced by the company, the court said: 'Their contention is that he slipped and fell, and in some way had his skull squeezed between the band and the pulley. It was even suggested that the contact of the hard substance of his skull between the band and pulley furnished the extra force that broke this pulley, which was otherwise sufficient for the work that it did, or that some oil can got in it, or some force of the idler was upon it, or he got in between the idler and the band, or some other way that was suggested by counsel. If that is a fair and reasonable inference from the proof, * * * the defendant company would not be liable. They are not liable unless the defect in the pulley caused the death, no matter how else it was caused, as I have told you heretofore.'

While the evidence was circumstantial, it was ample, in our opinion, to warrant the submission of the question to the jury under the instructions given. R.R. Co. v McDade, 112 F. 888, 50 C.C.A. 591; 191 U.S. 64, 24 Sup.Ct. 24, 48...