Washington Company v. McDade

This is an action on the case, brought in the supreme court of the District of Columbia by Lewis H. McDade against the Washington & Georgetown Railroad Company, a District corporation, to recover damages for personal injuries sustained while employed by the company, as a blacksmith, in its shops in Georgetown. The injury consisted in the loss of his left arm, which was caught in a belt used to propel a part of the machinery in the company's shop, and thereby so broken and mangled that it had to be amputated near the shoulder immediately after the accident.

The declaration alleges that the defendant is a corporation, and owns and operates a horse railway in the city of Washington and District of Columbia, and certain machinery for the construction and repair of the tracks, cars, and other appliances and implements used in connection therewith; that on the 5th of February, 1883, the plaintiff was in the employ of the defendant, as a blacksmith, and was required by defendant, from time to time, to put and place a certain belt upon a pulley attached to a counter shaft, when the same was in motion, to communicate power and motion from the machinery in the machine-shop of the defendant to the fan and drill-press used by plaintiff in the blacksmith shop; that the said machinery and appliances were defective and dangerous, in that there was no loose pulley and lever or shifter for the purpose of putting the belt on, and removing it from, the first-named pulley, but that plaintiff had no notice or knowledge thereof, being unused to, and unskilled in, such machinery and appliances; that the defendant, its servants and agents, knew that the same were defective and dangerous, but failed to notify the plaintiff thereof; that on the 5th of February, 1883, the plaintiff, while ignorant of such defect and danger as aforesaid, was, at the defendant's request, engaged in the act of putting said belt on the first-named pulley, and by reason of such defect and dangerous condition of the machinery, and without any fault or negligence on his part, was caught in or struck by said belt with great force, and his left arm was severed thereby, by means of which he was made very sick, sore, and lame for a long space of time, and suffered great anguish of body and mind, and was crippled and disabled for life from the performance of his usual trade and labor as a blacksmith; that he was put to great expense and trouble in trying to be healed and cured of said would and sickness; and that he paid large sums of money for medical attendance, medicines, and nursng, to his damage the sum of $20,000. The defendant pleaded the general issue, and defended, mainly, upon the ground that the plaintiff was guilty of such contributory negligence as precluded a recovery for the injuries sustained.

The case coming on for trial before the court and a jury, the plaintiff, to maintain the issue on his part, testified, in substance, as follows: He entered the service of the defendant, as a blacksmith, at its shops in Georgetown, on the 1st of May, 1881, and continued there until the time of the accident, on February 5, 1883. When he first went there, he worked at the same forge with a man named Eckrit, who was head blacksmith, but at a different fire; they making and repairing the irons used in the manufacture of street-cars. In the same room, which was about 40 feet square, at a separate forge, a man named Morgan made horseshoe nails. Eckrit left the service of the defendant a few months afterwards, and one Parsons was then employed as an assistant to the plaintiff, who had been made chief blacksmith. The blast of air used at their forge was supplied by a fan propelled by an engine which ran all the machinery in the shops by means of shafts, pulleys, and belts, and was situated in an adjoining room connected with the blacksmith shop by a door in the partition wall. The main shaft was in the engine-room. In the blacksmith shop there was a countershaft, 3 1/2 to 4 inches in diameter, about 12 feet from the ground and 30 inches from the wall, to which motion was communicated by means of a belt running on a fixed pulley attached thereto, and on another fixed pulley on the main-shaft, and passing through a small opening in the partition wall for that purpose. The belt which directly gave motion to the fan was about 3 or 4 inches wide, and ran on a small fixed pulley attached to the fan, and on a fixed pulley about 30 inches in diameter attached to the counter-shaft by means of a screw projecting about an inch and a half above the hub of the pulley. The latter pulley, when the machinery was in motion, revolved about 180 times per minute. Another fan in the blacksmith shop, propelled in like manner, furnished a blast of air for the forge at which Morgan worked; and a drill-press in the same room was propelled by means of a belf running on a pulley affixed thereto, and on a fixed pulley on the counter-shaft. Perhaps, on an average, once a week the engine and a portion of the machinery was run in the evening or at night, after work in the blacksmith shop had ceased for the day; and the belt used to propel the fan was then thrown off the pulley on the counter-shaft sometimes by the plaintiff, but generally by some one else in the employ of the defendant. During the time that Eckrit and the plaintiff were both in the employ of the defendant, Eckrit always put the belt on when it had been taken off, except when it was taken off for repairs; and, whenever such repairs were needed, one Moore, who kept in repair all the belting in the shop, would take it off and put it on again, but never at any other time. After Eckrit left, the plaintiff was directed to take the place of Eckrit at the forge, and all the time until the injury, a periodof 16 or 18 months, he habitually put on the belt whenever he found it off, except when it was taken off for repairs, supposing it to be a part of his duty. The first time it was off after Eckrit left, he called the attention of the engineer, Mr. Kline, to the fact that the belt was off, who said, 'Can't you put it on?' to which plaintiff replied, 'I suppose so,' and then put it on. Hawk, the foreman of the shops, from whom plaintiff received his orders, never gave him any instructions what to do, except that he should take Eckrit's place; and both he and Saylor, the superintendent of the company, often saw the plaintiff put the belt on, but never gave him any instructions about it, or informed him that it was Moore's duty to put the belt on when it had been taken off, and not to do it himself. Plaintiff knew that it was Moore's duty to repair the belts, and put them on the first time after they had been repaired, but never knew that it was Moore's duty to put them on at any other time; and Moore never did put on this belt at any other time.

He further testified that he was 53 years of age, and had been a blacksmith since he was 17, having worked in Washington and Baltimore, the latter city being where he had learned his trade, but that he was ignorant of machinery, never before having been employed in a shop where the blast of air for the forge was created by machinery but once, and in that instance the fan was 200 feet off, and not in the shop and that the belt connected with the fan in the defendant's shop was the only belt he ever put on. In order to put the belt on the large pulley on the countershaft, it was necessary to use a moveable ladder, about 12 feet long, placed against the partition wall. In going up this ladder, his back might touch the shaft, and the face of the pulley was nearer the wall than his own face; and, in placing the belt on the pulley, he would turn his face towards the pulley. On the morning of the accident the plaintiff went to the shop a few minutes before 7 o'clock to commence work; Parsons and the engineer, Kline, both being there when he arrived. Observing the belt off, and the machinery in motion, plaintiff ascended the ladder, and attempted to put on the belt, but it came off immediately. He then came down the ladder, and went into the engine-room, saying to Kline that there was something wrong with the belt, as it would not stay on. Kline then ascended the ladder, and attempted to put the belt on, but it immediately came off as before. Kline then came down the ladder, and said to the plaintiff that he would go and slow the engine, and that plaintiff should then put on the belt. He says that he waited a sufficient length of time, as he supposed, for Kline to reach the engine and slow it up, and, after the pulley had slacked somewhat in its revolutions, he again ascended the ladder, and attempted to put the belt on, but it was thrown off towards and against him, and formed a loop, which caught on the set-screw in the hub of the pulley, wound around the counter-shaft, and drew his left arm in between the belt and the counter-shaft, crushing and tearing it to such an extent that it was necessary to amputate it near the shoulder, immediately. When his arm was caught, he screamed, and the engineer immediately stopped the engine. The accident occurred on a Monday morning. On the preceding Friday or Saturday the belt had been repaired by Moore, who placed it on the pulley after it was repaired. It worked all right afterwards, and was still on the pulley when plaintiff quit work on Saturday evening. The plaintiff further testified that he had suffered great physical and mental pain from the accident, having been confined to his room for six weeks, and most of that time to his bed; that his nervous system had been shocked to such an extent that for 18 months thereafter he could not do any work; and that since that time, although better and stronger, he had suffered considerably, and was permanently disabled from working at his trade. He further said that he never had had any experience with machinery, and he did not know that it was any more dangerous to put a belt on a pulley while it was in motion than it was to strike a piece of iron with a hammer; that no one ever informed him that it was dangerous to put a belt on a pulley while it was in motion; that Eckrit, Moore, and Kline always put the belts on while the machinery was in motion; that, if he had known that it was dangerous to put a belt on a pulley while it was in motion, he would not have done so; that he had never seen any one put a belt on a pulley until he saw it in the defendant's shops; that in other parts of the shops, both before and at the time of the accident, the defendant had a loose pulley for the purpose of shifting belts, of which fact he was ignorant until afterwards; and that there were no loose pulleys in the blacksmith shop, and he did not know there were such things until after the injury, having afterwards seen one, for the first time, in Springman's blacksmith shop, in Washington. On cross-examination the plaintiff testified that 'on the occasion of his injury, when Kline left him to go the engine-room, he said he would go and slow up the engine, not to stop it,-and for plaintiff to put on the belt; that he stood at the foot of the ladder for about a minute after Kline left him, and until the speed of the machinery was somewhat slackened, and then went up the ladder, which took him about half a minute, and attempted to put on the belt; that, when he was caught in the belt, he screamed, and Kline came to the door of the blacksmith shop, and then went back and stopped the engine.'

Dr. Ritchie testified on behalf of the plaintiff that he attended him when he was injured, and amputated his arm; that his suffering was acute, and the shock so great as to cause permanent nervous impairment and mental depression; and that the physical injury was permanent. John T. Springman, a witness for the plaintiff, testified that about a year and a half before that time, having had occasion to do some very heavy work in his foundry, he bought a large blower, and supplied the air by means of a fan propelled by machinery; that he had placed a loose pulley at the fan, and another on the countershaft, shaft, both next to the fixed pulleys, shifting the belt, when necessary, onto those loose pulleys by means of a lever near the floor; that he had never seen such a contrivance anywhere else, although he had been a blacksmith 25 years; and that such a contrivance for shifting belts was considered safe, while to put them on and take them off by hand was considered dangerous. Robert Thompson, a witness for the plaintiff, testified that he had had a large experience in machinery and belting, having worked for 25 years in planing-mills and sash factories, and that loose pulleys for placing and removing belts on and off fixed pulleys had been in common and general usefor over 25 years; that they can be used wherever there is room to place them, and are generally placed on the counter-shaft immediately adjoining the fixed pulley, the fixed pulley at the machine being as wide as both pulleys on the counter-shaft; that the belt is removed from one pulley to the other by means of a lever called a 'shifter,' which can be operated very easily with one hand without out any danger, thus stopping and starting the particular part of the machine while the rest of the machinery is in motion; and that it is dangerous to put belts on pulleys by hand while they are in motion, and he would not do it without the shifter, which renders such work perfectly safe. Smith Pettit and John B. Randolph, witnesses for the plaintiff,-the former a machinist of 30 years' experience, and the latter the machinist at the state, war, and navy department for a number of years,-both testified substantially to the same effect as the preceding witness in respect to the long use of loose pulleys and a shifter for the purpose of removing belts in all well-regulated machine-shops, and to the danger of putting them on in any other manner. John W. Eckrit, who had worked ith the plaintiff in the shop at one time, as before testified to, a witness for the plaintiff, stated that he put the belt on the pulley three or four times after the plaintiff came there, but that no one directed him to do so, and he did not know whether or not Hawk was aware of such fact, and that he had put on belts before by hand.

The plaintiff thereupon rested his case, and the defendant moved the court to instruct the jury to return a verdict in its favor upon the aforesaid evidence, which the court declined to do; and the defendant thereupon excepted.

The defendant then gave evidence tending to prove that the machinery in its carshops was of the most approved character, there being none better or more suitable to be found in the country; that loose pulleys and a shifter were not used in blacksmith shops like its own, but were used only when the machine required the power to be quickly thrown off or put on, or where the work to be done was very heavy, and the belt not easily managed by hand; that the belt in question could be shifted very easily by hand, without danger, by a person of ordinary intelligence who had seen it done a few times; that there was a loose pulley on the drill-press in the blacksmith shop; that Hawk, the foreman, a carpenter by trade, had charge of all the men in the shops, and gave orders and directions to all of them, being perfectly competent to fill the position which he held, no one else having any authority to give orders to any of the men employed in the shop as regards the belting; that the engineer's duties were only such as pertained to running the engine, which fact was known to the plaintiff; that the duties of Moore extended not only to taking off and putting on the belts when they needed repairs, but consisted in his having general charge of the belts in the shops, putting them on and taking them off whenever such work was necessary, which fact was known to all the men in the shops, including the plaintiff; and that both Morgan, who worked in the blacksmith shop, and the predecessor of the plaintiff, always called on Moore whenever the belt was off. Hawk, the foreman, testified that on the Saturday preceding the accident, at about 4 o'clock in the afternoon, when work in the blacksmith shop was about to cease, he went there, and, standing about 25 feet from the plaintiff and his helper, Parsons, since deceased, addressed them both, saying that the engine would be run after working hours, and the belt would be thrown off, and that Monday, when the bell rang to go to work, moore should be called to put the belt on. He said that he gave that order because the belt had been repaired on the Friday preceding, but that he was not sure that either the plaintiff or Parsons he heard him, as the machinery was in motion, and was making considerable noise, and neither made any response. He said he was a carpenter, and had no special knowledge of machinery; that the belt was not taken off more than 12 or 15 times while the plaintiff was there; that when the belt was repaired, on the preceding Friday, it was made a little too short, which probably caused it to slip off when the plaintiff attempted to put it on; and that he never gave the plaintiff any instructions about his work at any time. George E. Noyes, a witness for the defendant, a machinist of experience, testified that he had never examined the machinery of the defendant carefully, but that it seemed to him that its general plan was good; that fast and loose pulleys are generally used where any part of the machinery is stopped periodically, and are sometimes, but not always, connected with forges; that it is always dangerous to put on a belt by hand when the machinery is in motion, and no one likes to do it, the only preventive being a loose pulley; but that in his shop he usually had boys to put on the belts by hand, and thought an ordinarily bright boy could learn to do such work in a day, by being shown how a few times. Moore gave testimony to the effect that on two occasions he was sent for to put on the plaintiff's belt,-nce by the plaintiff, and the other time by Parsons; that it was his duty to attend to the belts generally; and that he always took the belt off and put it on again when he repaired it, but never at any other time unless he was snet for. The engineer, Kline, a witness for the defendant, in describing the manner in which the plaintiff received his injury, stated that on the morning of the accident, after the machinery had been running four or five minutes, the plaintiff came into the engine-room, and said, 'I wish you would come and help me with my belt,' and that, after they got into the blacksmith shop, the plaintiff said, 'How am I to get that belt back on this side of the pulley?' He said he then ascended the ladder, and threw the belt back on the right side, but could not put it on, and then came down the ladder, and said to McDade, 'Hold up until I shut down.' He then went into the engine-room, and shut off the steam, but the engine did not stop immediately; the momentum being sufficient to carry the fly-wheels around 8 or 12 times before the speed was checked. In the mean time, standing by his engine, he heard McDade scream, and went to see what the matter was. He stated that from the time he came down the ladder until the engine stopped was not greater than three-quarters of a minute.

The plaintiff, on his cross-examination in rebuttal, testified to the following effect: He did not know whether putting on the belt was a part of his duty, but supposed it was, and acted accordingly. He again asserted that he had no idea of there being any serious danger in putting the belt on the pulley by hand,-not any more than in picking up a hammer from the floor. Speaking of the accident, he said that when Kline had attempted to put the belt on, and had failed, he came down the ladder, and said to him, 'Go up and put it on whilst I slow up the engine,' or, 'Go up the ladder, put the belt on, and I will slow the engine.' He further stated that he did not attempt to put the belt on until the engine was slowed,-whether it was sufficiently slowed or not he did not know; but that he understood the engine was to be slowed up in order to enable him to put the belt on.

At the conclusion of the testimony the defendant renewed its motion for a verdict, which motion the court overruled, and an exception was duly taken. Counsel for the defendant asked the court to grant 20 separate prayers for instructions to the jury, three of which the court granted in the language in which they were presented, ten were slightly modified, and seven were denied. The court, upon its own motion, gave one instruction. Under these instructions, verdict and judgment were rendered for the plaintiff for $6,195. The supreme court in general term affirmed that judgment. 5 Mackey, 144. Hence this writ of error.

Enoch Totten and W. D. Davidge, for plaintiff in error.

[Argument of Counsel from pages 564-567 intentionally omitted]

W. A. Cook, C. C. Cole, and W. L. Cole, for defendant in error.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.