Merritt v. Victoria Lumber Co.

BLANCHARD, J. Plaintiff sues in her own right as surviving widow, and as natural tutrix of her minor children, claiming damages for the loss of the husband and father, who was killed at defendant’s mill by a piece of timber violently thrown by a rip-saw. She charges his death to defendant’s fault and negligence in not providing (1) safe machinery and keeping it in safe condition; (2) in not operating the rip-saw so as to minimize the danger incident to its operation; (3) in employing careless and negligent operators. The answer of the defendant is that plaintiff’s husband’s death was purely an accident, not caused by any defect of machinery, nor yet by the fault or negligence of any one in its employ; but if occasioned by the neglect of any of its employees they were fellow servants of plaintiff’s husband, and for their negligence defendant is not liable. The case was tried by jury whose verdict was in favor of the plaintiff, awarding her twenty-five hundred dollars in her own right, and the like sum to her minor children. Defendant appeals. Ruling— The work the deceased was employed to do at the mill was to keep the floor and passage-way of the workshop clear of trash or pieces of timber. It was his duty to gather up the stray and loose pieces of lumber that might be lying in disorder on the floor, keeping them out of the way of the machinery and of the workmen. He was engaged in performing this duty when struck and killed by the piece of timber thrown by the rip-saw. He had no connection with the operation of the saw itself, nor was his sphere of duty confined to the locality immediately at and around the saw. [161] The rip-saw was operated by two men, one called “the feeder,” the other, “the off-bearer.” They were, at the time of the casualty, handling pieces of timber two feet long by about five inches square. Out of these they were sawing or ripping smaller pieces for balustrades, two inches square by two feet long. The rip-saw is a machine consisting of a cast iron table, thirty by forty-two inches, in the center of which, running in a slit, is a small circular saw. The table is movable—it can be raised up or down. The saw is stationary. There are fitted to and on the surface of the table what are called “guides,” to guide the timber as it is being put through the saw. Their object is to so adjust the timber and hold it to the saw that each piece sawed or ripped out of it is of the same width. The saw fitted in the slit revolves towards “the feeder” with incredible swiftness and power. The feeder stands in front of the machine and adjusting the timber to the guides and saw, pushes it against the saw. As the saw passes through it “the off-bearer’s” duty is to take the pieces, throwing to one side the. smaller piece intended for balustrade purposes, and returning the larger piece to “the feeder” to be again passed through the saw. At the time the deceased met his death “the feeder” had so adjusted the movable table to the saw that the latter could cut the depth of only half of the stick of timber he was feeding to it. He had passed the piece once through the saw and it had been returned to . him by “the off-bearer.” “The feeder,” turning it on the side, then passed it through the saw a second time. This severed from the larger piece one quarter of its size, or a piece (say) two inches thick by two feet long, intended to be worked up into a balustrade. The position of the two pieces at the instant the saw emerged the second time was, the larger piece, now three quarters of its former size, was on top of the smaller piece two inches square. It seems “the off-bearer” was slow to catch the pieces, and “the feeder,” not yet having loosened his hold, himself drew back the larger piece and in doing so the smaller cube, detached but still under the larger piece, was drawn against the teeth of the saw, was caught by the teeth and hurled with great velocity back towards the front of the machine where Stevens, the feeder, was standing. Just at that moment Merritt, the deceased, was in a stooping position, discharging his duties, just back of the front of the machine, only a few feet from Stevens. The flying piece of timber grazed Stevens’ arm and struck Merritt with full force on the side of the head at the temple, crushing his skull. After lingering a few hours he died, never recovering consciousness. He was forty-three years of age. His wages at the time were a dollar a day. He left a widow and eight children, seven of whom were minors—the youngest two years old. He owned little or nothing in the way of property. The family were supported by his earnings; were dependent on him. It is shown that, according to life insurance tables, his' expectancy of continued life was twenty-six years. The contention of the plaintiff is that the machine, at the time her husband was killed, was dangerously defective in that it was without what is called a “guard,” or “spreader”; that if this guard had been upon it and in place the accident could not have happened; that the object and purpose of this guard is to keep the pieces of timber, sawn through by the saw, from coming in contact with the teeth of the saw and hurled back, to the detriment of those standing at the front of the machine. This guard consists of a small piece of steel fastened in the slit in which the saw revolves, and adjusted just behind the saw. It is placed as near the saw as can be without incurring the danger of the saw striking it. Sometimes these guards come with-the machine when purchased from the factory; sometimes they do not and are supplied (made) bj’’ the people who run the machine. They are safety devices. It is shown that other rip-saws in defendant’s establishment were fitted with guards, and that the one in question had a guard put on it, the day before Merritt was killed, by [163] the foreman of the shop, but the same had, the day of the casualty, been removed by Stevens, “the feeder” of the machine. The contention of the defendant is that guards are not in general use on rip-saws; that a machine of that character is not defective because it is not supplied with one; that the factories manufacturing rip-saw machines do not fit them up with guards. The evidence satisfied the jury, as it does us, that a rip-saw of the character of the one that killed Merritt, to be safe should be equipped with a guard, and that Merritt would not have been killed had there been a guard on the machine. The jury were taken to the mill, saw it operated, and became convinced (all save two who dissented) that it was dangerous to operate such a machine in the kind of work then being done without its being provided with a guard. It was the company’s duty to see that this safety device was supplied and kept in position. The master is required to take reasonable precautions to secure the safety of his servants. A servant has the right to look to the master for the discharge of that duty. In this instance the company had provided no guard to be attached to the rip-saw. True it is the foreman of that department of the mill had, the day before, improvised a guard and fitted it in place on the machine. This may be taken as the act of the master—the foreman standing in his stead. So that when the work was commenced the day of the casualty the machine was fitted up with the requisite safety device. But before beginning to saw balustrade pieces out of the timber provided for the purpose, Stevens, the feeder, in charge of the machine, removed it. This act of Stevens was negligence for which the master must be held responsible unless the “fellow servant” doctrine applies to exempt him from liability. To bring the case within the exemption (exemption of the master from liability) this material fact must appear, that the servants engaged, one of whom is injured or killed, must be men in the same common employment o,nd engaged in the same common work under that common employment. Stucke v. Railroad Co., 50 La. Ann. 200, 23 South. 342. Where servants are engaged in different duties in the same establishment an injury resulting to one by the carelessness or negligence of another in the course of the latter’s peculiar work does not fall within the rule which exempts the master from liabiliity by reason of a fellow servant’s negligence. Stucke v. Ry. Co., 50 La. Ann. 200, 23 South. 342; Coal Co. v. Reid, 2 Macqueen, 266; Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787. The only persons engaged in working the rip-saw in question were Stevens, the feeder, and Woodward, the off-bearer. They were fellow servants. Stevens removed the safety guard. The off-bearer knew of this because he was there assisting-in operating the machine. He, therefore, is. to be considered as assuming the risk since he continued work knowing the increased danger of Ms position—by reason of the removal of the guard. Hence, if the off-bearer had been injured or killed, instead of Merritt, there could be no recovery. But with Merritt it was different. He was. not an attendant on the rip-saw. He was not restricted even to any one department of the-mill. His duties were to clean up' the whole shop. He moved here and there through the. mill in the performance of his task. It is not shown he was at or near the ripsaw when Stevens removed the guard, or that he knew of its removal even. It is altogether likely he had no knowledge whatever of the situation. Just prior to being struck by the piece of timber he had been directed by the foreman to pile up some lumber, some rubbish from the frame makers, and the foreman had told him to deposit the same near the ripsaw, and had showed Mm where to put it. The place he had pointed out to him was at the front of the rip-saw and near it. It seems the intention of the foreman was that, later, some of the stuff Merritt was piling-up should be run through the saw, ripped into blind slats. The pieces he was piling-up near the rip-saw he was bringing from the back side of the mill. When finished with that job he would be-put to another, perhaps in another department, or section, or on another floor of the-mill. [165] So he was not an attendant on the ripsaw; was not stationed near it; was not an assistant in its operation. There was no co-association between Stevens and Woodward, the feeder and off-bearer, respectively, of the saw, and Merritt, in the operation of the machine. The latter is not, under the circumstances, to be considered a fellow laborer in the same work. He was not engaged in the same common employment with Stevens and Woodward. There was no fellow service between them. This being so, the rule of non-liability of the master for the negligent acts or omission of duty of servants resulting in injury to a fellow servant, cannot be here applied. The danger to which Merritt was exposed as he approached the machine which dealt out death to him was not open or apparent. There was no negligence or carelessness on His part. The judgment appealed from is found to be correct and the same is affirmed.