McMichael v. Federal Printing Co.

I find no objection to the statement of the facts in the opinion of Mr. Justice JENKS, in so far as they relate to the construction of the machine, but I do not think it was error for the court to exclude evidence of the use of cast iron bearings in specific shops or factories. It is probably true that if the defendant had offered to prove by witnesses that a given appliance was in common use, and had undertaken to prove this by showing that a majority of shops and factories were using it, it would be competent to show individual instances of its use in all cases where this might be done. The difficulty here is that no such offer was made. There was no suggestion that the defendant intended to prove common use by showing a large number of individual cases. There was merely an offer to show conditions in two places, neither of which appear to have had the same construction as that involved in the case at bar. The question was not whether iron or bronze bearings were in general use, but whether there was such a general use of iron bearings under the circumstances and conditions in use in the defendant’s printing office as to justify their use by the defendant. No one questioned that iron bearings might be safe and proper under some conditions. It seemed to be admitted that they might properly be used on a loose pulley, where there was no driving power, but the question before the jury was whether the changed construction, that of bolting together an iron-bearing pulley and a bronze-bearing pulley, and then applying the power to the iron-bearing pulley, was safe and proper, and this issue was not met by showing that some particular factory had thrown out bronze-bearing pulleys and substituted iron-bearing pulleys. Neither would it have been met by showing that the common practice was to throw out bronze-bearing pulleys. There was some evidence in the case that the cutting machine, which worked the injury, was of standard and approved make as originally installed, but that it had been changed by a bolting together of a loose iron-bearing pulley and. a bronze-bearing pulley, and that the application of power to the iron-bearing pulley at the end of the shaft had a tendency to bring the shaft out of alignment and to increase the friction, and that the friction thus, produced caused the shaft to heat and to finally cause the pulley to become attached firmly to the shaft in such a manner as to operate the cutting machine without the intervention of the operator, and that it was this construction, with this attendant result, which operated to start the cutting machine while the plaintiff was placing the paper under the knife. Obviously it was not the same construction which was in general use, or the construction which was originally intended for the machine. This being true, what was done in one or many other places using this kind of a machine, or other machines of a similar character, had nothing to do with the case, and the ruling

I am equally convinced that the reasoning of Mr. Justice THOMAS, while most persuasive, goes only to the weight of the evidence on contributory negligence, and that, the jury having passed upon this question, it is not for this court to overturn the verdict simply because we think.we might, sitting as jurors, have reached a different conclusion. The theory of Mr. Justice THOMAS seems to be that, it being the duty of the plaintiff to oil and clean his own machine, he must have neglected to perform this duty, as, on previous occasions, when the pulley had clutched the shaft and operated the machine, it had been found that the application of oil corrected the difficulty. But the plaintiff testified that he cleaned the machine in the morning of the day of the accident, and .that he oiled the same at or about the hour of 6 in the evening, only about two hours before the accident happened, and the testimony showed that lubrication was required only about twice in each day. There was some evidence, therefore, of care on the part of the plaintiff in respect to the very condition which is conceded to have been the proximate cause of the injury— the friction of the pulley upon the shaft, causing a clogging, and resulting in the fastening of the pulley to the shaft in such a manner that it caused the machine to start at a time when it was not intended that it should start. The suggestion that, if it was not negligent to use an iron pulley alone, it could not be negligent to use it in connection with a bronze pulley, such bronze pulley being assumed to be proper if used alone, does not seem to me to be conclusive. There was evidence that the oil cup provided on the bronze pulley was much larger than that on an iron pulley, and, while Mr. Justice THOMAS points out that the bronze pulley also afforded the oiling cup for the flywheel, this does not fully meet the situation. The oil cup provided on the iron pulley was the oil cup originally designed to supply the lubrication for a loose pulley, on which there was but comparatively small friction, and where there was no danger to the operator of the machine, even though it should- become heated. This oil cup, entirely adequate for the loose pulley, we may assume may have been entirely inadequate for a pulley subjected to the strain of driving a 60-inch knife blade through heavy stacks of paper, and it was not the duty of an ordinary machine operative to know of this defect in the machine as it was afforded him for operation. It should be remembered that the driving power was taken from the pulley which was supplied with the large oil cup, and transferred to the pulley with the small oil cup, and the plaintiff may be absolutely truthful in saying that he oiled the bearing at 6 o’clock in the evening, and yet the lubrication may have been in

If I am right in this, it follows that the learned court below did not err, as suggested by Mr. Justice JENKS, in excluding the testimony in reference to the use of iron and bronze pulleys in specific cases, for that was not the issue. The question was whether the machine as reconstructed was a safe and proper machine. An iron pulley designed to be the driving pulley, and properly equipped for that purpose .vith an adequate oil cup, might be perfectly proper, while an iron pulley, intended only to carry a belt, without strain, and equipped with an oil cup entirely proper for that purpose, might be extremely dangerous if used as a driving pulley, as was done in this case, and so the question of the use of iron or bronze” pulleys, however general, could not justify the defendant in making use of a mere belt-carrying pulley, at least without warning the plaintiff of the fact that the machine as thus changed would require oiling at much shorter intervals at this pulley bearing.

The judgment and order appealed from should be affirmed.

HIRSCHBERG, P. J., and RICH, J., concur.

I dissent. The action is for negligence by servant against master, who appeals from a judgment upon the verdict at

The master was required only to furnish such a machine as was reasonably proper and safe, and he was absolved if in this respect he exercised such care as would be exercised by a man of ordinary prudence with an eye to his own safety in seeking such a machine for his personal use, for, as Earl, J., in the case first hereinafter cited, says: “It is culpable negligence which makes the master liable, not a mere error of judgment.” Harley v. Buffalo Car Manufacturing Co., 142 N. Y. 31 , 36 N. E. 813 ; Marsh v. Chickering, 101 N. Y. 396 , 5 N. E. 56 ; Burns v. Old Sterling I. & M. Co., 188 N. Y. 175 , 80 N.

“It may be laid down as an undisputed proposition that, where the injury complained of was caused by an instrumentality or method which at the time of the accident was in its normal condition, evidence going to show that such an instrumentality was or was not commonly used under similar circumstances by persons in the same line of business as the defendant is always competent for the purpose of proving that he was or was not in the exercise of due care in adopting or retaining that instrumentality as a part of his plant. Nor is it •disputed that, if the evidence is conflicting as to whether such machinery is in common and ordinary use, the question of negligence in using the machinery is not one of law, but of fact for the jury.”

See, too, Thompson’s Comm, on Ñeg. § 3993.

Although the master originally had bought and set up a machine of standard make, yet, as he had caused a third person not the manufacturer to make changes therein without the approval of the latter, the feature of a standard machine purchased from the manufacturer does not appear in this case.

This statement of the master’s general obligation makes it clear that the master on the question of his care was entitled to show usage of cast iron bearings for a like purpose. The master sought to prove that in certain workshops where there was a large number of similar machines bronze bearings had been replaced by cast iron bearings, but was prevented by the sustaining of a general objection to which exception was taken. And thereafter the master inquired of a witness whether a certain manufacturer, said to be the largest in the country, had used any bronze bushings within the last 10 or 15 years, or whether it had within that' period used any bronze or soft metal bushings in its power presses for the pulleys. The objection of incompetency was sustained under exception. The learned counsel for the plaintiff writes in his points relative to these rulings:

“Assuming for the purpose of the argument that it might have been proper to show the general custom in this respect, it is well settled that that cannot be done by the proof of one particular instance as was attempted in this case. It does not appear that the witnesses had any knowledge of the general usage or if they did no attempt was made to prove the result thereof. Testimony to specific instances does not establish usage. Abbott’s Trial Brief on Facts (2d Ed.) 598, and cases there cited.”

Testimony of specific instances merely may not establish usage. But, on the other hand, to quote the language of Vann, J., in Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 316 , 43 N. E. 859 :

“Usage is a matter of fact, not of opinion, and must be shown by those who have observed the method of transacting the particular kind of business as conducted by themselves and others. Mills v. Hallock, 2 Edw. Ch. 652 ; Haskins v. Warren, 115 Mass. 514 , 535; Chesapeake Bank v. Swain, 29 Md. 483 , 498; Garey v. Meagher, 33 Ala. 630 ; 2 Rice on Ev. § 349.”

In Mills v. Hallock, 2 Edw. Ch. 652 , the Vice Chancellor said:

“A custom must be proved by evidence of facts (and not by mere speculative opinions) by means of witnesses who have had frequent and actual experience of the custom. The testimony of those who speak from report only, and not from particular instances within their own knowledge, if receivable at all, is of no weight. 4 Starkie, 452.”

Prof. Wigmore, in his Evidence, says (section 379):

1 “Of course individual instances, offered one at a time, are receivable. The practical question is commonly whether enough have been offered to suffice to go to the jury.”

The prevailing opinion thus puts aside my objection to an affirmance of the judgment. Mr. Justice WOODWARD, for the majority of the court, writes:

“It is probably true that if the defendant had offered to prove by witnesses that-a given appliance was in common use, and had undertaken to prove this by showing that a majority of shops and factories were using it, it would be competent to show individual instances of its use in all cases where this might be done. The difficulty here is that no such offer was made. There was no suggestion that the defendant intended to prove common use by showing a large number of individual cases. There was merely an offer to show conditions in two places, neither of which appear to have had the same construction as that involved in the case at bar.”

It would seem that the learned judge disregards entirely the statement of the defendant at the time it was checked by objection. The record is as follows: The counsel for the defendant on the redirect examination of his witness asked:

“Q. Has the Miehle Company for the past 10 or 15 years used any bronze or soft metal 'bushings in their power presses for their pulleys? (Objected to as incompetent. Objection sustained. Exception.)

“Mr. Bouvier: Upon the question of liability, is it not proper to show the exercise of reasonable care, to show that the defendant carried out or complied with a system obtaining in some of the large and important mechanical companies in this country, on the question of reasonable care?

“The Court: The question here is whether this defendant in this instance and in the use in question exercised reasonable prudence and care.

“Mr. Bouvier: In the use of a cast iron bearing?

“The Court: Take the machine and its necessary apparatus, shafting, pulleys, flywheel, and motive power. Hence I adhere to my ruling. (Exception.)”

It seems to me that this was a definite statement of the object of the testimony which had just been excluded, namely, not to show

For these reasons, I think that a new trial should be granted.

The machinery involved in the accident is described clearly by JENKS, J. The only ground of negligence upon any pretense imputable to the defendant was a union of a pulley with cast iron bearing to one with a bronze bearing. The criticism by plaintiff of this device is that the cast iron pulley makes the greater friction, as it revolves on the shaft, and the lubricating oil “burns and cakes and forms with the particles that are ground off of the cast iron bearing "a cake, and, together with the heat which expands the metal, the bearing ■of the pulley becomes fast or frozen to the shaft.” See evidence of Southard, pp. 131-210. The two pulleys were lashed together and revolved as one pulley, and the alleged danger arose from inequality of friction, so that the cast iron pulley consumed its oil faster than the bronze pulley, and the attritions from the bearing hardening in elements of burned oil tended to make it freeze or attach itself to the shaft, which caused the knife to fall and rise. Of course, if both pulleys be of iron or there be a single iron pulley, the wear is the same,