National Enameling & Stamping Co. v. Cornell

Boyd, J., delivered the opinion of the Court. The appellee was injured while in the employ of the appellant in its factory in the city of Baltimore, and having recovered judgment for the injuries sustained by him, this appeal was taken. Although the plaintiff offered four and the defendant twenty prayers, the principal question involved in the caséis a narrow’ one. The plaintiff was seventeen years of age at the time oí the accident and had only been engaged in the work he was doing an hour and half when he was injured.

He was working on a power press, which was used to make edges on bread pans. The machine had two dies—the lower one being stationary and being the one upon which the bread pan was placed, and the upper one being movable, when the machine was put in motion it rapidly descended upon the lower, thus forming the edge on the pan and then instantly ascending to its original position. There is a treadle which the operator presses ■when he desires to start the press, thereby releasing a clutch and allowing a fly-wheel connected by belting with the steam power to run the press. From the treadle there extends upwards an iron rod, from the end of which is another rod which is attached to the clutch.

The pressure on the treadle moves the rod, thus opening the clutch and starting the press in motion, and when the foot of the operator is removed from the treadle the clutch is closed and the upper die ceases to move up and down, if the machine is in proper order. But if the connection between the treadle and clutch is broken, the upper die will move up and down until the steam power is taken from the press. At the time of the accident complained ⁵²⁶ of, the bolt which connected the upright rod with the one attached to the clutch, came out and thus the clutch was opened and the upper die kept in motion until the steam power was removed. The hand of the appellee was caught between the dies while he was in the act of removing one'of the pans, causing the injury sued for.

The appellee contends that the accident was caused by reason of the bolt which connected the rods only having one nut on it, and the appellant claims on the other hand that there were two nuts on it—an ordinary one and a lock nut—and this is the real issue of fact between them, as the appellee relies on that alleged condition to show that the appellant had not discharged the duty required of it to furnish reasonably safe machinery for him to work with. There are two bills of exception in the record—the first containing the ruling of the Court on an objection to a question which was asked Frederick Rielander, a witness produced by the plaintiff, and the other includes the rulings on the prayers. The witness, Rielander, had testified that he had worked on the machine and after explaining how the rods were .connected, etc., he was asked “What can you say as to whether or not this bolt had ever dropped, in that manner before?” The record shows that the question was objected to, the objection overruled, and an exception noted. Then without stating the answer to that question, the record continues : “Did you ever see the bolt come out in this way before ?

A. Yes, sir; it did when I was running it. The Court: When was that? A. About a month before he was hurt. And the defendant objected to the witness answering the question objected to, as indicated, but the Court overruled the objection and allowed witness to answer, as above indicated.” As the answer to the first question mentioned is not given, the appellee-contends that the exception is of no avail.

The record • does not show that the question originally asked was answered, but after the form of it had been changed it was and the objection was apparently intended to be made to the offer to prove the fact and not merely to the form of the question, and it was probably supposed by counsel that the objection was under ⁵²⁷ stood to be to that which was answered. But without stopping to discuss that, we think it was a relevant inquiry. The effort of the plaintiff was to prove that there was only one nut on the bolt and he offered testimony of experts that it was not a safe and proper construction to thus connect the rods and that if there had been a lock nut on, the bolt would not likely have fallen out. The case finally turned mainly on the question whether there was only one nut, and the testimony on the part of the defendant’s witnesses tended to show that the use of a lock nut would hold the bolt in place, and that there was one -on it.

So although it was to some extent anticipating what would be proven by the defense, and might have been more appropriately offered m rebuttal, it did reflect upon the question whether there was a lock nut on, as the bolt was not likely to come out if there was, according to the theory of the plaintiff, and there was no reversible error in permitting the question to be asked. Several of the prayers offered by the defendant, and rejected by the Court, sought to take the case from the jury on the ground that the testimony failed to show that the defendant had not discharged its duty towards the plaintiff It is conceded by the appellant that the master is bound to use reasonable care to provide reasonably safe and suitable machinery for the employee to vPork with, but it is contended that when that is once done the master is not required to see that the machinery does not subsequently get out of repair, if he delegates the duty of repairing it to an employee, using due care in the selection and retention of such employee, and furnishes him with proper facilities for doing or causing to be done the repair work, and that if an injury is sustained by reason of the negligence of such fellow servant in failing to repair the machine or report it to the proper agent of the master, the latter is not liable to the injured employee. The tendency of many Courts of this country has been to require the master to use the same care in maintaining and keeping in repair the machinery, as in furnishing it, and it cannot denied that in some of the later cases in this State the ⁵²⁸ general doctrine has been stated in terms apparently more liberal to the servant than in O'Connell's case, 20 Md. 212 ; Shauck's case, 25 Md. 462 ; Wonder's case, 32 Md. 411 , and others cited by the appellant. In Stricker's case, 51 Md. 69 , it was said: “It was the duty of the company to exercise all reasonable care to provide and maintain safe, sound and suitable machinery, roadway structures and instrumentalities.” That was repeated in Russell's case, 88 Md. 57 L substance in Jamar's case, 93 Md. 404 , and perhaps others, but it was not intended to overrule or disturb the earlier cases, and in Strieker's case it was said the rule there announced was supported by O’Cotinell’s case and Wonder's case.

In Yates v. McCullough Iron Co., 69 Md. 370 , the fellow-servant rule, as applicable to such cases, was fully recognized. The difference is that in Maryland and some other. States, the master’s duty to maintain is ordinarily considered discharged by the employment of competent employees to make the repairs, and by furnishing proper facilities for them, and he is not usually responsible to an employee for the negligence of a fellow-servant entrusted with the duty of making repairs—the negligence in that respect being one of the risks assumed by the servant when he enters the service of the master, while in many other States the employee, whose duty it is to repair, stands in the place of and represents the master and the latter is held responsible for the fellow-servant’s failure to repair, In 12 A. & E. Ency. of Law, (2nd. ed.) 959, many cases representing the conflicting doctrines are cited. Then, too, there is a further distinction between the cases in reference to the place furnished by the master to the servant to work in.

The authorities generally agree that under ordinary circumstances that duty rests upon the master himself. He cannot escape liability under such circumstances as are shown in Jamad s case, supra, where the instrumentalities furnished were originally safe, but the employer altered them in such way as to make them unsafe, thereby causing the injury. But without considering that question further, the general rule as to the duty of the master to furnish (originally) safe machinery, ⁵²⁹ as announced above, is in full force in this State, and we think there was sufficient evidence to go to the jury to determine whether or not the appellant had performed that duty, conceded to be required of it. There is abundant evidence to show that this press was not reasonably safe without the use of the lock nut, or something- more than the one nut—indeed we do not understand that to be disputed.

The only evidence that tends to show with any certainty that a lock nut was originally on the bolt is that of Mr. Andrews, the foreman of the room where the plaintiff was injured. He testified that he had been acquainted with this press for ten years or more and that it always had a lock nut on the bolt; that one was on it the evening before the accident, when the press was working-all right and was the same as it had been for ten years. Mr. Peregoy, the foreman of the machine shop at the defendant’s place, said