Womble v. Antietam Paper Co. ( 1924 )

CARR, District Judge.

In the above-entitled case it is doubtful whether the plea of not guilty interposed by the defendant covers the matter contained in the first plea to the seventh count, tendered at this hearing. The negligence alleged is negligent installation of the machine, and it is doubtful whether it puts in issue the allegation that the excessive speed caused the clutch to oscillate and engage the, motive power. The second plea to the seventh count alleges that the installation of the machine was by fellow servants, and was a risk assumed by plaintiff, if negligently done.

I do not think the rule as to the erection of temporary applianees, such as referred to in Kelly v. Jutte & Foley Co., 104 Fed. 955, 44 C. C. A. 274, and the other cases referred to_ by defendant, apply in a case of. this kind. The erection and installation of the paper cutting machine in the instant case was not temporary, but was a machine installed for the specific purpose. I do not understand the law to be that a master is relieved from responsibility to his employees when he provides an appliance, which in itself is safe when properly installed, in his place of business for permanent use, but which is unsafe when improperly installed. His duty is to provide a safe place and safe appliances to do the work, and this includes the proper permanent installation of such appliance, and is not delegable, so as to escape responsibility.