Koslovki v. International Heater Co.

This action was brought to> recover damages claimed to have resulted from the negligence of the defendant in furnishing for the use of plaintiff a machine with a defective bolt, which permitted a heavy piece of the machine to drop upon his foot. Accepting the theory adopted by the jury,—that the accident did happen in the manner and from the cause claimed,—we still think that plaintiff is to be so charged with having had knowledge through his agent, of the defect complained of, and of having assumed the risks incidental thereto, that he cannot recover, and that the judgment and order appealed from should therefore be reversed.

The accident happened October 30, 1899. The defendant was engaged in the manufacture of furnaces, and in the course thereof it became necessary to have parts which came from the foundry cleansed of the sand which adhered thereto. This was accomplished by putting several hundred pounds of moldings at a time into what was known as a “tumbler,” where .they were revolved for a considerable length of time, with the result of having the sand worn off. It was in connection with. one of these tumblers that the accident happened. The particular one involved was about six feet long, with a diameter of about equal length. It was made of iron, in the general shape of a large barrel. The head at either end was made with a flange, to which iron stoves, corresponding to those of an ordinary barrel, were bolted. Several of _ these stoves' would be unbolted from the flange at each end, and taken off, to permit the moldings to be put in and taken out of the tumbler at the commencement and the end, respectively, of the cleansing process. The tumbler was revolved by means of appliances attached to it, and connected with the power. Plaintiff at and for some time prior to the date of the accident had an arrangement with defendant for cleaning these moldings by the process in question. By the terms of it, he was to receive 3% cents per hundredweight for doing the work, and, as claimed by him, the defendant was to furnish and keep in order the machine. Having made this arrangement, he hired two men to help him. They were his employés, and paid by him, and not at all by the defendant. According to plaintiff’s evidence, which, in view of the findings of the jury, we must assume to have been true, one of these men, named Felix, had the principal and immediate charge of the work. He looked after taking off and putting on the stoves when the moldings were put in or taken out, plaintiff assisting him when necessary. Upon the occasion in question, while plaintiff was helping Felix take off some of the stoves, preparatory to taking some moldings out one of the former became loosened and fell upon his foot, causing the accident in question. His witnesses gave evidence which permitted a jury to find that this falling of the stave was due to the fact that the thread had become worn from the bolt which fastened it at one end, thus allowing the nut to slip off, and the 'stave to become loose and fall upon the foot. There was a sharp dispute whether the accident did happen this way. Plaintiff claims that this defective

It will be noted that the arrangement between defendant and plaintiff was somewhat different from the ordinary relation established between employer and employé. The plaintiff was, to some extent, an independent contractor. He relies almost entirely upon the specific agreement by defendant to look after the machine as a basis of his claim of negligence. The specific agreement is placed in the. stead of the ordinary liability from master to employé to furnish suitable machinery. The query might arise whether defendant’s alleged agreement would carry with the failure to observe it a liability for personal injuries. It might be urged that the agreement to provide machinery simply had reference to enabling plaintiff to perform his work, and that the only liability for a failure to comply would be liability for damages in his undertaking. This question, however, has not been presented, and we need not consider it. The case was tried below, and has been presented to our attention, simply and solely as an ordinary one of negligence, in which the questions have been tried whether the defendant was guilty of negligence, and whether plaintiff was free from contributory negligence. The failure of the defendant to furnish a proper machine, as found by the jury, has been treated as ordinary negligence, and we shall consider plaintiff’s situation upon the theory already adopted in the action. It was, in effect, held and charged by the learned trial justice that if the plaintiff knew or ought to have known of the defective bolt, and appreciated or ought to have appreciated the results liable to flow therefrom, he could not recover. He held, however, that upon all of the evidence this was .a question of fact for the jury. We think that, so far as plaintiff’s personal knowledge was concerned, this disposition was correct. There was testimony showing that plaintiff was accustomed to help his man Felix bolt the stoves to the flanges, and that he was more or less around the tumbler. He denied absolutely and unqualifiedly the possession of any knowledge which would tell him that the bolt in question was defective. While there may be apparent improbabilities in his version, we feel unwilling to hold that he is to be charged, as matter of law, with personal knowledge of the conditions which are said to have ex^ isted. His position in the case, however, is not, in our judgment,

These views bring us to the consideration of the question whether plaintiff’s employé Felix is, as matter of law, to be charged with knowledge of the condition of the bolts, and with appreciation of the results which would probably follow the wearing out of the thread. We do not find much difficulty in answering this in the affirmative. For months Felix had been at work around the tumbler. Plaintiff, by his evidence, has emphasized the theory that he had charge of putting on and taking off the 'stoves and adjusting the bolts. This operation had been repeated by him two or more times each day for months. According to defendant’s theory, he had had opportunity to replace bolts which became worn with new ones which were kept on hand. According to plaintiff’s theory, he had been accustomed to replace worn-out bolts with others less worn, and frequently had been compelled to turn new threads upon bolts. He had complained to the defendant’s employés about the lack of proper and sufficient bolts. His work in adjusting the same compelled him to observe

Judgment and order reversed, and new trial granted, with costs to appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur.