Betz v. Winter & Goetz

Opinion by Mb. Justice McCollum, The plaintiff was in his seventeenth year at the time of the [348] occurrence in which he lost an arm. He was then and for five months previous thereto had been an employee of the defendants in a department of their tannery. He was instructed by .his predecessor in the work to which he was assigned. It was a position that he sought and for which he was obviously qualified. The condition of the machine used in fleshing hides was the same when he received his injury as when his predecessor operated it. It was a reasonable conclusion from the testimony in the case.that the plaintiff and his predecessor were alike familiar with the operation of the machine and aware that avoidance of contact with it while in motion was essential to their safety, but neither of them thought or suggested to the defendats, that the condition of the hood increased the danger to which they were exposed. It was the effort of the plaintiff to disengage a piece of flesh fastened between the rubber roller and the journal at the right of the machine that resulted in the injury of which he complains. It is conceded by him that the injury could have been readily avoided by a temporary suspension of the operation of the machine, and that the brief delay of the suspension would have been of trifling importance. That he was vigorous, energetic and devoted to the performance of the work in which he was engaged admits of no doubt, and that he was acquainted with the risks incident to it sufficiently appears in his testimony. It was also shown by his testimony that the hood prevented the machine from throwing pieces of flesh in the faces of the workmen, and around the room, and that it was designed for that purpose. He frankly acknowledged that he knew he had to keep his hands away from the knives and that if he had done so there would have been no accident. It follows as a legitimate conclusion from the facts established by the testimony that if the plaintiff had exercised the care required by the circumstances there would have been no occurrence on which to base a suit for the injury he received. It was undoubtedly the duty of the defendants to furnish a reasonably safe machine to be operated by their employees in the performance of the work to which they were assigned, and there is no testimony in the case which authorizes an inference that they failed in any respect to discharge that duty. The age and intelligence of the plaintiff excluded a presumption of [349] want of capacity for the position he sought and obtained, and the information he received from his predecessor repelled the suggestion that he was without instruction or experience. For the reasons above stated we conclude that the learned court below did not err in refusing to set aside the nonsuit. Judgment affirmed.