Hauser v. American Smelting & Refining Co.

The opinion of the court was delivered by Minturn, J. The plaintiff was injured while in defendant’s employ at Perth Amboj', in an attempt to ent a key way in a piece of steel, as a result of which the sliver or chip which he was cutting out from the way hew up and struck his eye, causing the damage which presents the basis of the present claim for damages. The plaintiff was thirty-seven years old, and for over a year had been in the employ of the defendant as a boiler repairer. Prior to that he had been elsewhere engaged operating a stationary engine in a colliery and as a utility man about pumps, and while he had a general knowledge of key ways and their use, and knew the uses of various tools upon metal, he nevertheless was not a machinist and had never made a key way of steel, and had never seen it done. On the day in question he was taken from his regular employment and ordered to make this particular key way. lie informed the foreman at the time that he had never done such work and was unable to do it in this instance. The foreman nevertheless told him to undertake to do it, hut gave him no instructions as to the method of doing it. The plaintiff asked for tools with which to clo it, hut the foreman having none at hand, directed him to go to the chief engineer for the necessaiy tools. That official had no-tools, and the plaintiff stated to him that he had been ordered by the foreman to cut a key waj1-, that he never before cut one, and had no tools for that purpose. The chief engineer instructed him to go to the blacksmith shop and have a tool made, which he did, and he then undertook to perform the work without further instructions as to the method of performing it or the dangers, if any, inhering in its performance. When his chisel reached the end of the way, and the sliver or chip which accumulated [687] and curled up in the way was in readiness to be removed from the work; the plaintiff took a hammer and struck the chisel upon the metal sliver, expecting it to drop to the floor as a result of tire blow. Instead of falling the coiled sliver of steel flew upward and struck the plaintiffs eye. .He testified that lie had received no warning or caution of any kind, and that no specific instructions had been imparted to him as to the proper method of doing the work. Men of experience in that line of work testified that work of that kind required experienced hands, and some knowledge of that character of work, and that the ordinary mechanical knowledge acquired in shops was not sufficient for the purpose, unless it 'was supplemented by the experience of watching others engaged in such work. They made it quite manifest that there was a correct method of doing the work, which they themselves had acquired only by instructions, practice and experience. Upon this state of facts the trial court directed a uonsuif. In this we think there was error. The rule applicable to a situation of this nature is so familiar that we assume of course that the real difficulty consisted in the failure of the learned trial court to apply it, because of the argument urged and repeated here, by the defendant, that the risk was obvious, and that the plaintiff as .a practical man must have comprehended and assumed it. But it is manifest that this argument assumes the veiv issue in the case. The plaintiff contends it was not obvious to the uninstrueted eye; and he is corroborated in this by the expert mechanics, who explained the methods employed by them to overcome the dangers inherent in such work, obvious undoubtedly to the instructed and experienced mind, hut not -so clearly obvious to one ignorant of its proper performance and uninstrueted as to its possible dangers. The duty of the master, under such circumstances to instruct or warn the servant, is of course a familiar rule of law. and its application fo the facts in this case required the submission of the issue thus presented to the jury. Laragay v. East Jersey Pipe Co., 48 Vroom 516; Tittlebaum v. Pro [688] gressive Paper Co., Id. 596; Tompkins v. Machine Co., 41 Id. 330. The judgment will be reversed and a venire de novo awarded. For affirmance — None. For reversal — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Bogert, Vredenburgh, Congdon, White, JJ. 11.