Butler v. Kilpatrick

W'HITIN'G, J. Action to recover damages for personal injury alleged to have been sustained by reason of 'defendants’ negligence. Verdict and judgment for plaintiff, and defendants appealed from the judgment and an order denying a new trial. But two questions are presented: (1) The sufficiency of the complaint; (2) the sufficiency of' the evidence to support the verdict. We deem it unnecessary to consider the first. Defendants were the owners of a threshing outfit. Plaintiff was employed 'by them in the capacity of “separatorman.” It was plaintiff’s duty to- look after the running- of the separator, and the various parts thereof. As a part of his -work -he looked after the oiling of the separator. Attached to the separator was a self-feeder. This self-feeder was run by means of a cogwheel gearing- situate on the side and near the top of the separator about 8 feet from the ground. This gearing was inclosed in a metal casing or guard. It appears that the shaft attached to one of these cogwheels passed through a boxing situate close up to the side of the separator. The top of the separator extended over and some 3 or 4 inches beyond- the frame thereof, thus forming ¿ shelf above the boxing and the gearing. When this casing was in place, it was impossible for one, while the separator was in operation, to reach to and feel of the said1 boxing, the same being between the gearing and the separator and about 2 inches from the gearing. The oil for the boxing reached it through an oil-tube running from the top of the separator. This casing over the gearing was, with plaintiff’s knowledge, taken off on September 2nd. On September 4th, the plaintiff, desiring to ascertain if the boxing above mentioned was heating (the same having during the preceding 10 days been heated twice), went up on the top of the [593] separator, lay down thereon, and, while the separator was in operation, reached over the edge of the separator and, with his hand between the uncovered gearing and the separator, attempted to feel of such boxing to> ascertain whether or not it was heating'. In so doing his thumb came in contact with the meshing gear and he was severely injured. Plaintiff, in attempting to reach the boxing, had to reach over the edge of and under this shelf and then down between the separator and the meshing gears. It dearly appears that the plan of such machine contemplated that no attempt should be made to feel of this particular boxing except when the machine was not in operation. Plaintiff seeks to recover upon the theory that the defendants had not furnished him with safe machinery with which, and therefore not a safe place within which, to work, and he relies in support of the judgment herein upon the cases of Perreault v. Wisconsin Granite Co., 32 S. D. 275, 144 N. W. 110, and Iverson v. Look, 32 S. D. 321, 143 N. W. 332. Defendants contend that plaintiff was guilty of contributory negligence and that the above cases are not in point. Defendants are clearly right in their contention, as the situation presented by the facts of .this case is not analogous to the situation revealed by the facts in the -two cases above referred to. In each one .of those cases the plaintiff was injured while in the discharge of a duty that devolved upon him and while in the proper discharge of such duty. It is true that, ui the present case, plaintiff was injured while 'trying to ascertain the condition of this box — a duty which devolved upon him' — but he was discharging this duty at a time and in a manner not in the line of the proper discharge of such duty. Plaintiff testified: “If the guard had been there, I couldn’t have gotten my hand' m there at all, and T didn’t realize that I was in danger of having my hand drawn into1 the wheel and crushed.” The last part of this statement would have been'-very material if it were not for the first part of same. Tf the mechanism' of the machine, in its normal condition, had contemplated the reaching to this boxing to examine its condition while the separator was in operation, and then, after the removal of the guard, plaintiff in attempting tc: discharge his duty, not realizing that he “was in danger of having my (his) hand drawn into the wheel and crushed,” had received his accident, the situation would be anal [594] ogous to that in, and this case would be ruled by, the two cases above mentioned. It must be remembered that the plaintiff had full knowledge that the mechanism of this machine did not contemplate Ihe examination of such boxing while the separator was in motion; this knowledge came from the fact that he could not reach such boxing when the casing or guard was over it. Plaintiff, testifying in relation to his ability to1 ascertain whether the boxing was heating before the guard or casing was removed, said: "There was no way of finding it out then until the machine stopped at night. I waited then because there was no way of getting at the box. * * * I knew it couldn’t be done before that, but after the casing was off I put my hand down ¡there to feel of the box.” He reached and felt of such boxing with the full knowledge that the guard or casing was removed. An entirely different situation would have been presented if, while moving about the separator in the proper discharge of his duties, plaintiff, or any one else employed about such machine, had inadvertently come in contact with such uncovered' gear and been injured thereby. We can hardly‘imagine a clearer case of negligence than for one, working about a piece of machinery which, in its normal condition, would not permit of a certain act, to take advantage of an occasion when he knows such machinery ¡to be in an abnormal and dangerous condition, but yet a condition which permits of such act, and undertake such act regardless of such known dangerous condition and regardless of the fact that the duties of his position did not call upon him to' do such act. One so acting, ’and acknowledging, as plaintiff does, that, “I knew there were cogwheels there on the end of the shaft, and I knew that the cogwheel on the end of the shaft meshed with another cogwheel, and I knew that if I got my hand between the two- wheels it would be injured,” cannot escape the consequences of his negligent and unwarranted act upon the pretext that, “I didn’t think anything about it.” If this guard or casing had been removed before he commenced work around the machine, and he had not been advised that this boxing was to be examined only when the machine was not in operation, then there would be some ground for claiming that he had a right to suppose that his duties required him to feel of this boxing while the machine was in motion; in which case, [595] if be did so not thinking of or realizing the danger connected1 with such act and was injured, he might have some basis upon which to rest an action for damages. The judgment and order appealed from are reversed.