Moyes v. Ogden Sewer Pipe & Clay Co.

McCARTY, J. Byron R. Moyes, the plaintiff, was injured while in the service of the defendant company on the thirteenth of March, 1903, by losing his left arm at the elbow. In his action for damages for said injury a verdict of $4,000 was rendered, and judgment thereon entered. From said judgment this appeal is taken. The allegations of negligence in plaintiff’s complaint upon which he relies for a recovery are as follows: “Plaintiff further alleges that the bell that he was supposed to ring in order to give the signal to let the plunger descend was worn out, old, cracked, and that said bell was placed immediately under and below the hopper that he was attending to, and that said bell was wholly unprotected, so that clay could and would fall from the table of the hopper upon said bell, and would cause said bell to make a sound as though the cord of bell had been pulled; all of which was, or by the use of reasonable diligence could have been, known to defendant, and was unknown to plaintiff. Plaintiff further alleges that the defendant was guilty of negligence and carelessness in this, to-wit: That defendant failed to give plaintiff any or proper instructions how to operate said sewer pipe machine, or how to clean and keep said hopper free from dry clay or any hard substances, and failed to warn said plaintiff of the danger of said machine and to keep his hands and arms out of said hopper and from under said plunger, and in keeping the said bell properly or at all protected, and in causing said plunger to descend without giving any warning to plaintiff, and that by reason of said negligence and carelessness of defendant as aforesaid, and without any fault or carelessness on the part of plaintiff, he has lost his left arm as aforesaid, and will be injured, maimed, and crippled throughout his life; and that by reason thereof said plaintiff has been made sick and sore and distressed in mind and body, and will ever be so — all to his damage in the sum of $20,000.” Defendant, by its answer, denies that it was guilty of any negligence that caused, or in any way contributed to, the injury upon which the — 158 — action is based; and alleges contributory negligence on the part of plaintiff, and that he assumed the risk and hazards of the employment. It appears from the record that the plaintiff was employed by the defendant company to work in its factory, a building of three stories, in which sewer pipe was being manufactured. Plaintiff, who at the time was fourteen years of age, bright and intelligent, commenced work at noon on March 11, 1903, and worked until noon the following day (March 12th) sifting sand and doing odd jobs about the factory, on the ground floor thereof. A few minutes before it was time to start the factory running at the noon hour on the date last mentioned, Hemle, a boy who was in the employ of the defendant attending the feeder of, the tile press on the third floor of the factory, came to plaintiff, and asked him if he would change jobs. Plaintiff answered that he would provided Hutto-, the foreman, would consent. Hutto gave his consent, and the boys changed work. Plaintiff testified that Hutto then went with him to the third floor, where the feeder and the tile press were, and said to him, “You must keep all the clay away from the machinery. ’ ’ Hutto, however, testified that he did not go with plaintiff on the occasion referred to. Neither did he give him any instructions respecting his (plaintiff’s) work, The clay used .for making tile was brought by ‘ ‘ cup ’ ’ elevator from the -ground floor to where plaintiff last went to work, and was discharged on a belt, termed the “slow feeder belt,” thence onto a fast feeder belt, which delivered the clay into a steel pot or cylinder (called “hopper” in the complaint), and there molded into sewer pipe. When the “pot” or “hopper” was filled with clay, the discharge of clay from the fast feeder belt was shut off, and a signal given by plaintiff to the pressman, who stood at the lever on the floor below, to let the steam on and start the plunger down to press the clay for the purpose of fashioning or molding it into sewer pipe. The feeder belts ran in wooden boxes elevated about four feet from the floor. These — 159 — boxes ran east and west, and there was a platform for the operator’s (plaintiff’s) nse along the south from the west end fourteen feet to the tile press. At the west end (fourteen feet from the tile press) was a seat for the operator, with levers at his hand to regulate the action of the feeder belts. There were also- signal cords communicating with the ground floor to regulate the clay coming up and with the pressman to set the plunger in motion when signaled so to do by plaintiff. Immediately in front of the tile press there was an open space in the floor from eighteen inches to three feet in width, and it was shown' by tests made by certain of the witnesses that pieces of partially dried clay falling through this open space would occasionally strike the bell which was used to signal the pressman to set the plunger in motion, causing a ring similar to that created by pulling the bell cord. William McGregor, a witness called by the defense, testified that he worked in- the immediate vicinity of the bell, and had on several occasions observed pieces of clay, which had fallen-through the open space mentioned, strike the bell. The feeder belts would sometimes get clogged with clay, and the plaintiff would clean them off, which-was a part of his duties. As stated by one of defendant’s witnesses in- his testimony, “If the clay accumulated on top of the plunger so that it went up high enough, he would have to push it off.” On the afternoon of the second day that plaintiff1 was at work in the factory, while he was in the act of cleaning the partially dry clay from the tile press, the plunger, without any warning, came down, and cut his arm off at the elbow. On this point the plaintiff testified in part as follows: “When hurt I had left the chair, and was standing on the floor cleaning in back of-this sheet iron. The seat is elevated about three feet from the floor. I went over to clean the clay, and put my hand in as far back as I could reach. I was pushing the clay down into the press. I put. my hand in to clean it out so that it wouldn’t get dry and fall down and spoil the tile. The plunger came down, and cut my arm at the elbow joint,. — 160 — leaving’ my hand in the place where the plunger goes. ’ ’ And again: “Before the accident I had cleaned out from under the plunger about six or seven times. . . . The plunger never came down before I rang the bell. I did not expect it to come down until I rang the hell. I did not ring the hell. I was twelve or fourteen feet away from the place where I used to ring the hell.” The clear preponderance of the evidence shows that neither Hutto, the foreman, nor any other person gave plaintiff instructions respecting the manner in which he was to clean the clay from the tile press. Nor was he warned of the danger of cleaning away the clay referred to with his hands, there being no tools at his disposal except a hoe, which was not suitable for that purpose. Plaintiff testified on this point as follows: “I had never worked around machinery before, and had worked on this machine but one day. I had seen the machine operated once or twice before I was hurt, but had'never seen it cleaned out. When I saw the machine working, it was for a minute or two. No one warned me about the danger of putting my hand in there. I did not know it was dangerous. ’ ’ Hutto, the foreman, was called as a witness by defendant, and testified: “Well, I never considered there was any dang-er to it [the tile press]. I •didn’t warn him [referring to plaintiff]. I never paid any particular attention, to him. ’ ’ When the evidence was all in, and both parties had rested their ease, the defendant requested the court to peremptorily instruct the jury to return a verdict for defendant. The refusal •of the court to so instruct is now assigned as error. Appellant contends that the dangers and hazards incident to the employment in which plaintiff was engaged were so open, plain, and obvious that a person 1 of the age and intelligence which the evidence shows plaintiff to be would, by the exercise of ordinary care, have understood and appreciated them; and, further, that plaintiff’s means of knowing and understanding the hazards of the employment were equal to those of his employer, and that he assumed the risks and — 161 — dangers to which he was exposed. It appears from the record that plaintiff was the only person authorized and whose duty it was to give signals for the plunger to descend, and it is evident that, if the hell had not been rung by accident — which the evidence tends to show was caused by pieces of clay falling through an open space in the floor immediately in front of the tile press and striking the bell, which was in an exposed condition almost directly under the opening in the floor — the injury to plaintiff would not have occurred. In determining the question of negligence on the part of defendant and that of contributory negligence on the part of plaintiff, the exposed position of the signal bell with reference to the falling clay, the youth of plaintiff, and his inexperience in the handling and running of machinery, and the question as to whether or not, under the circumstances, it was the duty of defendant to warn him of the dangers and hazards of the employment, were proper matters for the consideration of the jury, under proper instructions from the court. Young v. Clark, 16 Utah 42, 50 Pac. 832; Anderson v. Daly Min. Co., 15 Utah 22, 49 Pac. 126; Bailey, Mast. Liabil., 116, 117; Chopin v. Badger Paper Co., 83 Wis. 192, 53 N. W. 452; Wynne v. Conklin, 86 Ga. 40, 12 S. E. 183; Taylor v. Wootan, 1 Ind. App. 188, 27 N. E. 502, 50 Am. St. Rep. 200. The contention of appellant that the opportunities of plaintiff for knowing and understanding the risks and dangers of the employment were equal to those of the 2 defendant, and that plaintiff thereby assumed the risks, and. that the court, as a matter of law, should have so found, is not supported by the record, which shows that plaintiff was young and inexperienced, and there is a conflict in the evidence as to whether he received instructions from any source respecting the manner or way in which he should, perform the work. The preponderance of the evidence, however, is that he received no instructions. There is evidence in the record — 162 — tending to show that he received general instructions to keep the excess or accumulations of clay away from the tile press, hut that no specific instructions were given him as to how he should do this, and that there were no tools at his disposal suitable for that purpose. Under these circumstances, and in view of his youth and inexperience, it was a question for the jury to determine as to whether or not he was not justified in assuming that his employer expected him to use his hands for that purpose. Appellant -assigns as error the giving of certain instructions and the refusal of the court to give certain instructions asked for by appellant. The instructions cover nearly 20 pages of the abstract, and are therefore too voluminous to set forth in this opinion. We have however, made a careful examination of them, and find that the court carefully and elaborately covered all the issues, and that the instructions, as a whole, are as favorable to the defendant as the facts in the case warrant. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, C. J., and BARTCH, J., concur.