Opinion
6 Div. 594.
November 21, 1918. Rehearing Denied December 19, 1918.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
F. E. Blackburn, of Birmingham, for appellant.
Beddow Oberdorfer, of Birmingham, for appellee.
Plaintiff appellee, suing under the Employers' Liability Act (Code 1907, §§ 3910-3913), brought this action against the defendant Jebeles, doing business as the Excelsior Bakery. Plaintiff, while operating a "dough roller" for defendant, suffered an injury to his person, and his claim for damages is rested upon the allegation that the machine was defective in that it was not provided with a loose pulley. The sixth and seventh counts were framed under the superintendence clause of the act, but the allegation of negligence against defendant's superintendent is that he caused or allowed the machine to be without a loose pulley.
The allegation of the fifth count, which was permitted to go to the jury, was "that the pulley lever, or lever for moving the belt on the pulley on said machine, was defective." The evidence showed, and it is a matter of common knowledge perhaps, that the function of a lever, such as was intended by this count, is to engage or disengage a machine with the power which moves it by shifting the transmitting belt from the loose to the tight pulley, or vice versa. Without contradiction it appeared from the evidence that, while there was a lever, and it was rusty, it was an entirely useless appendage to the machine, as it was because the loose pulley had been removed long before plaintiff suffered his hurt. We leave consideration of the case under this count with the observation that unless the belt could be disengaged from the tight pulley notwithstanding the absence of a loose pulley, and unless the fact that the lever was rusty prevented its movement, defendant should have had the general charge as to this count, for otherwise the condition of the pulley could not have been the cause of plaintiff's hurt. This may seem rather obvious, but it is a matter which, though made material by the complaint, seems to have had little attention at the trial.
As for the other counts, all of them depending, as we have seen, upon a finding that the machine was defective for the reason that it had no loose pulley, the brief for defendant attacks the action of the court in submitting them, and more especially the second count, to the jury over his request for the general charge, on the ground that it appeared without dispute that there was no proximate causal connection between plaintiff's injury and the fact that the dough roller was not provided with a loose pulley. We think this contention should prevail as a matter of fact upon all the evidence.
The machine was so constructed that the dough to be rolled passed from an apron between two rollers so arranged and revolving as to draw it in and press it into the form of a sheet. At the time of his injury, plaintiff was cleaning the bottom roller, 12 inches in circumference. This he did in what appears to have been the customary way in that shop, by holding with both hands a scraper against the roller which, to use plaintiff's language, was turning as fast as the power could pull it. The witnesses all inferred that the scraper came into contact with a piece of dough that had hardened upon the roller, with the result that the scraper was knocked out of plaintiff's hands, one of which was by this sudden release caused to pass between the rollers. The interval between the rollers at the moment was such that the plaintiff's hand was not injured, but the rollers caught the thick part of his forearm, causing a compound fracture thereof. The arm was not injured above the elbow. The machine, which was operated by electric power, was stopped by a coemployé in the shop who shifted a switch upon the wall. We quote from appellee's brief:
"The evidence shows that the plaintiff was left-handed. The lever was at his left hand and close at hand. The right hand was not gripped or mangled by the rollers. Their distance apart did not render the pressure great until the larger part of the arm came in contact."
Plaintiff testified that if there had been a loose pulley he could and would have had time to pull the lever, shift the band, and prevent his injury. His brief argues that it was for the jury to say whether he might not have thus prevented at least a part of his injury. It may be that, theoretically, plaintiff's testimony made it proper to submit this issue in the first place to the jury; but the verdict should not have been allowed to stand against defendant's motion for a new trial. Consulting common knowledge and general observation, as we must do as well as the jury, our judgment is that plaintiff's injury cannot as a matter of reasonable inference be ascribed to the absence of a loose pulley from the machine at which he was working. It is a familiar rule that in cases under the Employers' Liability Act the employé's claim cannot be aided by the presumption that negligence characterized the cause of his injury. Negligence must be proved to the reasonable satisfaction of the inquiring mind. In the brief for appellee some stress is laid upon cases in which the courts have held that dangerous machinery, cogwheels, revolving knives, and the like, should be guarded — at least, there is much quotation from cases of that character. But there can be no serious doubt that the principle of such cases can have no just application to the case now before the court. So, also, this case, as made by the pleading and evidence, finds no helpful analogy in Yess v. Chicago Brass Co., 124 Wis. 406, 102 N.W. 932, where the plaintiff's arm was slowly drawn into a machine for stopping which, until the pending operation was completed, no means whatever was provided. In that case the court held it error to exclude testimony tending to prove that the machine could not be stopped while in use and under tension, and that the defendant failed to inform the plaintiff of that fact. (Italics supplied.) Plaintiff's contention here is that it was defendant's duty to guard against accidents of the sort; but there is no insistence that the machine in its original shape was defective, or that there was any breach of duty in failing to inform plaintiff of the condition of the machine as it was. The specific charge is that reasonable precaution against such an accident as befell plaintiff required the provision of a loose pulley, and that, but for its absence, he would not have been injured, or that a part at least of his injury would have been prevented. Conceding that plaintiff was properly operating the machine, though there was evidence to the contrary, it is evident that one of his hands, or arms, might have been so caught between the rollers as to render the theory that by resort with the other to a lever and loose pulley he could have prevented the injury in part at least, wholly untenable. Assuming the loose pulley in place, it is to our mind highly improbable that any person, however his hand or arm might be caught by the rapidly revolving machine in question, could thereafter save himself from injury by resorting to the lever and loose pulley. At any rate, it is improbable to the last degree that plaintiff, caught as he was — and it will be borne in mind that neither the pleading nor the evidence supports a charge that plaintiff's arm was caught by reason of any negligence of defendant — could have thereafter avoided any part of his injury by the use of the loose pulley. To make that result possible would have required miraculous celerity of mental and physical action on the part of the plaintiff and an instantaneous shifting of the power-transmitting belt from the tight to the loose pulley. Neither the natural nor the mechanical apparatus in question operates or can be made to operate in that way. It results, in our opinion, that, on the evidence, there was no probability that the absence of the loose pulley had any proximate, or, for that matter, remote, causal connection with plaintiff's injury and that the trial court erred in overruling defendant's motion for a new trial.
For error in overruling the motion for a new trial the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.