Browne v. Pratt & Letchworth Co.

Kruse, J.: The plaintiff, a workman in defendant’s employ, placed his hand on top of the rail upon which a traveling crane was moving and his hand was injured. He brings the action to recover damages for the personal injuries so sustained, alleging that the defendant was negligent in placing him at work in a- dangerous place, made so by the movements of the traveling cran’d, without instruct- , ing or warning him of the danger. . ■ The defendant is a manufacturing corporation, making iron castings and the like. It has a machine shop. The shop is three hundred and eighteen feet long and thirty-seven feet wide. In the shop is a traveling crane, about sixteen feet above the floor. It runs on two rails, one on each side of the building. The rails are laid on and along I beams. The crane runs backward and forward the entire length of the shop; It is. used to distribute castings and other material. It is operated by a man in a cage at one side of the crane, tinder directions of some one On the floor. At one side of the shop are located revolving saws. They are operated by power supplied by mean's of shafting, pulleys and belts. The plaintiff was at work at one of these saws. A crossbeam resting on a standard extends over the saw. The crossbeam is about [861] ten feet above the floor, and a little over five feet below the top of the rail upon which the crane runs. There is a line shaft along the side of the shop a little below and a little farther away from the side of the wall than the I beam. There is a pulley on this shaft which drives the saw in question by means of a belt. The belt was off, and the plaintiff was directed by the foreman in charge of his branch of the work to get up on the crossbeam and put the belt on the pulley. He got up on the crossbeam, which projected from the side over the saw and put his left hand on top of the rail to steady himself, with his back towards the crane. The crane came ■ along, passed over his fingers and crushed them. He could have taken hold of the lower flange of the I beam, but perhaps not so conveniently nor held himself so securely. The shop work seems to have been carried on night and day. The plaintiff worked nights. He had worked there but a short time when he was injured, being hurt on the third night of his employment. He testified that when he went to work there he received, no instructions; that he was not told to look out for the crane; that he never noticed it. There was a printed notice posted warning employees to look out for the crane, but plaintiff testified that he never saw it; that just before he was hurt he was told by the foreman to put on the belt. He told the foreman that he did not know anything about putting on the belt. The foreman said to get up on the beam, hang on, take hold, and put it around the pulley. The plaintiff attempted to comply with the directions and was injured in the manner stated. While we think the evidence sufficient, upon the question of the defendant’s negligence to send the case to the jury, the question of the plaintiff’s contributory negligence is not so free from doubt. There was a general foreman in charge of the shop over the one who gave the directions to the plaintiff. He was not in the defendant’s employ at the time of the trial and was called as a witness by the plaintiff. He testified' that while the crane did not move constantly up and down the shop, it would probably not stand stationary longer than ten or fifteen minutes at a time; that it was used quite a little the night of the accident before the plaintiff was hurt. The plaintiff himself does not deny that the crane passed up and down, but he says he paid no attention to it; that he did not know [862] whether it passed over his head or not; as he puts it: “ I never paid any attention of that kind, looking around the shop ; I paid attention to my work.” If this crane was used, passing up and down frequently, directly over the plaintiff during the time he was at work in this shop, as the undisputed evidence shows it was, it seems incredible that the plaintiff should not have noticed the crane and the manner of its operation, and if he did, he must have known and appreciated the danger of putting his hand upon the rail over which the crane was moving back and forth. After the evidence was closed and before the case was summed up and submitted to the jury, in answer to an inquiry of counsel for the defendant, the presiding judge stated that if the jury should find as a matter of fact that the plaintiff knew of the operation of the crane, and knew that it was liable to run along the rail there at any moment, and put his hand on the rail, he was guilty of contributory negligence. But in charging the jury it seems to have been left uncertain (at least so defendant’s counsel claims) whether, if the jury found those facts, the question would still be left open whether the plaintiff knew and appreciated the danger involved in putting his hand upon the rail, and at the close of the charge the court was asked to specifically charge that if the plaintiff had noticed that the crane was frequently passing up and down the track and placed his hand on the rail with such knowledge, he cannot recover. This request was denied, for the reason, as stated by the judge, that it must be found that he knew and appreciated the danger of putting his hand upon the rail, either that, or that he had been instructed as to the danger, and he refused to charge as requested, except with this qualification, to which defendant’s counsel excepted. It seems to me that the defendant was entitled to this request without qualification. The plaintiff was a man twenty-two years of age, and presumably of ordinary intelligence. If he knew that this crane was frequently passing up and down the track, and placed his hand on the rail, he must have appreciated that this heavy crane passing over it would injure his hand. We do not decide that the plaintiff was guilty, of contributory negligence as a matter of law, but we think that the request should have, been charged without [863] " the qualification, and that the error was so prejudicial to the defendant as to require a new trial. The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concurred, except Spuing and Williams, JJ., who dissented in lan opinion by Spuing, J.