South Baltimore Car Works v. Schaefer

Fowler, J., delivered the opinion of the Court. This is an action to recover damages sustained by the plaintiff while in the employment of the defendant, the South Baltimore Car Works. The verdict of the jury was in favor of the plaintiff and this is the defendant’s appeal. At the close of the whole case the plaintiff and defendant each offered several prayers.

There was also an exception taken to the admission of certain testimony; but the conclusion we have reached renders it unnecessary to do more than discuss the question presented by the ruling upon the de ¹⁰¹ fendant’s first and second prayers, by which it was sought to take the case from the jury. The learned Court below rejected these prayers, but we are of opinion, after a careful examination of the record, that they should have.been granted. Both of them deny the legal sufficiency of the evidence to show such negligence on the part of the defendant company in the discharge of its legal obligations to the plaintiff as would entitle him to recover. We will proceed, therefore, as briefly as may be, to state the facts relied on by the plaintiff to show a failure of duty and consequent negligence in the part of the defendant.

The defendant is engaged in the business of building freight cars. At the time the plaintiff was injured he was working at a boring machine in defendant’s shop. In another part of the shop, but in the same room, about xoo feet distant from him, one of his fellow workmén was operating a machine which some of the witnesses called “a sticker.” Its proper name is “A 12-inch Fay outside moulder.” It is thus described : “It is a machine in general use for making moulding work. It is about 8 feet long, 5 feet wide and 3 feet high.

The piece of wood which is to be cut'is placed on the bed of the machine, and then pushed forward by means of rollers and brought into contact with the knife-blades, which do the cutting. These knife-blades are attached to what is called a revolving cylinder. It is not, however a cylinder in the geometrical sense, as it has four flat sides. This cylinder so called re-wolves on its axis.

To each of the four flat sides there is attached a knife-blade. These knife-blades vary in size and shape, according to the particular style of moulding to be done. The one which hurt Schaefer, the plaintiff, was about 12 inches long, 4 inches wide and one-half inch thick. These knife-blades are not a permanent part of the machine, but are removable at pleasure, and are changed from time to time in accordance with the work on hand.

Each knife-blade is fastened to the cylinder by means of five steel bolts and nuts. In each of the four faces of the cylinder is a slot extending its entire length, 12 inches. The heads of the bolts are made' ¹⁰² to fit tightly in this slot, the body of each bolt passes through an opening in the knife-blade, five such openings being provided, one for each bolt. A nut is then placed on the end of each bolt, the nut is tightened and the knife-blade is firmly clasped to one’ of the flat sides of the cylinder, and held in position by the five bolts and nuts.

The sharp edges of the knife project about a quarter of an inch over the édge of the cylinder, so that they are left free to do the necessary cutting. The rapid rotary motion of the cylinder brings the knife-blades successively into contact with the wood, and thus cuts or moulds the same into the desired shape.” The witness, Junker, who was operating the moulder at the time of the accident testified that he did not know how the accident happened; that the blade flew off and struck the plaintiff; that the blades had been fastened in position by the assistant foreman who usually attended to the adjustment of the machine ; that the bolts used were selected by the assistant foreman from a number of bolts kept in a box alongside the machine ; that they were cutting a piece of white pine which was not unusually difficult to cut; that he had no reason to believe that the cutting of such a piece of wood would cause the blade to fly off and that he had never heard of such a thing happening before during the two years he had' been operating the machine. The witness, Kelly, testified that he saw the plaintiff fall and that after the accident he examined the machine and discovered that one of the knives was off of the cylinder and that two of the five bolts which had teen used to keep it in place were broken and the other three were bent or twisted. The plaintiff testified that the knife struck him.

This is all the testimony we find in the record relating to the accident, and taking it as true we are unable to ascertain from it whether the breaking of some and the twisting or bending of the other bolts was caused by defects in the bolts and nuts, or by the negligent and faulty adjustment of the machine by a fellow servant of the plaintiff. Indeed with the exception of the fact that they broke there is nothing in the evidence to ¹⁰³ show that either the machine the bolts or the nuts were in any respect defective. Assuming this to be so, however, the plaintiff contends that this is a case in which negligence may be inferred from the breaking of the machinery and the consequent injury of the plaintiff, in other words that it is a case to which the maxim res ipsa loquitur properly applies. In order to test the correctness of this proposition it will be necessary to state the well-established rule regulating the duty of employers to employees.

That rule is thus clearlj' and briefly stated in the recent case of Wood v. Heiges, 83 Md. 257 . “ When the servant engages to perform certain services for a compensation, it is implied as a part of the contract that, as between himself and his employer, he assumes all the risks incident to the service. And these risks include such as arise from the hazardous character of the service and from the negligence of other servants in the same employment * * But the master himself is bound to use ordinary (that is due and reasonable) care and diligence to provide proper materials and appliances to do the work and in the selection and employment of competent and careful fellow servants.” It is obvious, therefore, that the plaintiff must not only show that he was injured, because the bolts were defective, but he must go one step further and offer evidence legally sufficient to show that the defendant did not use reasonable care in procuring proper bolts for the adjustment of the knife. But there was no such evidence offered. On the contrary the evidence is that both the machine and its appliances including the bolts and nuts were purchased from Fay Co. shown to be first-class manufacturers of machinery.

As we have said, the first question therefore which presents itself is whether the mere fact that the bolts broke is legally sufficient evidence of defendant’s negligence. In discussing this question it must not be forgotten that the defendant’s foreman went upon the witness stand and offered such explanation as he could in regard to the breaking of the bolts, for in this respect this case differs from most, if not all, the cases in which the maxim res ¹⁰⁴ ipsa loquitur has been applied to such cases as this. Thus in Colladay's case, 88 Md. 91 , it is said “ There was no attempt to explain or refute the negligence imputed by the plaintiff’s testimony, and in the absence of this explanation on the part of the defendant the law raises the presumption of negligence.” ■ The case just cited was much relied on by the plaintiff, biit we think it clearly distinguishable from the case at bar not only by the fact that there was a failure even to make any attempt to account or explain for the falling of the elevator, but by reason also of the evidence tending to show that the ropes which'supported the elevator were worn and frayed— thus showing that a permanent; part of the appliance, and there - fore the appliance itself, was in a dangerous condition which could have been discovered by proper inspection. But in addition to these facts, it was in evidence that the' elevator fell at a time when it was not in motion, from which the jury might well have inferred neglect on the part of 'the defendant to furnish a safe appliance.

The state of case before us now is altogether different. The testimony shows that immediately before the accident the bolts were selected and used to fasten the knives on the machine by the person whose duty it was to do that work. He testifies they were in perfect condition,' that he examined them and there was nothing the matter with any of them that he could see, thát he left nothing loose and fastened everthing, he fastened the blade on all right * * * He further testified that after the blade came off he noticed that the third and fourth bolts were broken off and the nut broken off the bolt; * ' * that he could not explain what it was that made those bolts break, “ unless the frost had set in, as it generally does in'the winter, and more bolts break than in summer.” When asked what effect the frost wpuld have, he replied “ It has a tendency when you tighten the nut up on the bolt to crack it and make a hidden defect” which could not always be discovered by looking at the bolt before putting it in, but that he had not discovered anything of the kind when he selected and examined the bolts the morning of the acci ¹⁰⁵ dent.’ As was said in Prehl v. Albany Railway, 30 Appellate Division (N. Y.) 169: To punish the defendant because it cannot explain the cause of the break “is not to punish it because it has done wrong, but because it does not know what we wish to find out.” It has been held in a number of cases that the sudden breaking of machinery is not sufficient of itself, to warrant the Court in sending the case to a jury. Thus the mere fact of the breaking of a chain, Brymer v. Southern Pacific E. Co., 90 Cal. 496 ; the unexplained bursting of emery-wheel, Simpson v. Pittsburg Locomotive Works, 139 Pa.

St. 245; the parting'of a brake-chain on a car, Sack v. Dolese, 137 Ill. 129 ; the bursting of a fly-wheel, Prehl v. Albany Ry., supra; the breaking of a car-wheel from some cause unknown, Morrison v. Phillips, 44 Wis. 410 ; the breaking of a derrick, Duffy v. Upton, 113 Mass. 247 , were held not sufficient to justify an inference or presumption of negligence. On the contrary the plaintiff cited a number of cases to sustain his position.that the mere breaking of appliances or machinery is evidence from which the jury may infer negligence, but it will be found that few or none of