Scherer v. Danziger

SLOSS, J.

Plaintiff recovered damages for personal injuries suffered by him while in the employ of the defendant. The defendant appeals from the judgment and from an order denying his motion for a new trial.

The plaintiff was an engineer, and was employed to run a pumping plant on defendant’s ranch. The plant, comprising a gasoline engine and two pumps, was located in a pump-house. The engine and one of the pumps stood on the main floor of the house, and the other pump was in the basement. Power was transmitted from the engine to the pumps by means of belts. The pump on the main floor was fitted, among other parts, with a cogwheel twenty inches in diameter, which meshed with a smaller gear wheel or pinion. The plaintiff had been tightening the nuts on stuffing-boxes on the side of this pump. Having done this, he wiped the nuts with a rag held in his right hand. He then turned to leave the pump, and as he was passing by the cogwheels the rag which he held was_ caught in the gears, drawing his hand into the wheels, and causing the injuries of which he complained. The negligence charged consisted of the defendant’s act in requiring the plaintiff to remove from the cogwheels a cover which he had theretofore placed over the same, thus leaving the cogwheels uncovered and unprotected. There will be no occasion to discuss the further claim that defendant was -negligent in failing to furnish plaintiff with cotton waste for wiping the machinery.

The answer denied any negligence on the part of the defendant, and set up an affirmative plea that plaintiff’s injuries were caused by his own negligence.

It is argued that the evidence was insufficient to warrant a finding of negligence on the part of the defendant. This contention cannot be sustained. Taking, as upon this appeal we are bound to do, the version of the evidence most favorable to the plaintiff’s claims, we may fairly say that the record shows this state of facts: During the entire time of plaintiff’s employment, one Moebius was in general charge of the defendant’s ranch as foreman. His authority was superior to that of the plaintiff, and he had power of direction and control

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over the latter. Soon after the plaintiff entered the defendant’s employ, he suggested certain changes in the arrangement of the pump-house, and these were carried out with the defendant’s consent. The belt transmitting power to the lower pump ran down one side of a flight of stairs leading to the basement. Among other changes, the plaintiff extended a wooden platform over this side of the stairs, and moved to the edge of the extension an iron railing which before had run within a few inches of the cogwheels on the upper pump. This left a space of some eighteen inches between these wheels and the railing. The purpose of the alterations was to give plaintiff easier access to the upper pump and to obviate the danger of contact with the belt. With things in this condition, the plaintiff regarded the exposed cogwheels as dangerous, and constructed a sheet-iron cover, which he placed over the cogwheels. Soon thereafter Moebius, the foreman, objected to the cover, which apparently caused some noise in the operation of the machinery. After several discussions, he finally ordered the plaintiff to take the cover off. The plaintiff replied, “If I have to take it off now, I will take it off, but you have to take the responsibility if anyone gets hurt.” The foreman persisted in his command, and the plaintiff removed the cover. On the following day the accident occurred.