Nelson Manufacturing Co. v. Stoltzenburg , 59 Ill. App. 628 ( 1895 )

Mb. Justice Sample

delivered the opinion of the Court.

The appellee brought this suit to recover damages for a personal injury alleged to have been caused by the negligence of appellant, and obtained judgment, from which this appeal was taken. It appears that on the 13th day of March, 1894, while- attempting to place a belt on a pulley on a six-saw wood-cutting machine, then being tested by appellant, appellee got his left hand against the saws and it was cut off. The business of appellant was that of constructing wood-working machinery principally. The appellee was an apprentice in the iron or machinist’s department, where all the metal portion of the machines was made. There was also a mechanic’s, or wood department, where the framework of the machines was prepared. He had been in appellant’s employ some two years before the accident, had made good progress in his trade, and was regarded as a bright young man. The appellant had manufactured a new machine, with six circular saws, instead of three saws, for the purpose of cutting wood into narrow strips. This new machine was like the other machines that had been made, except in the additional center shaft that ran beneath the saws, on which there was a pulley, which came within three and three-eighths inches of the saws. This machine on -which appellee was injured had been set up in the department where appellee was working and within about twenty feet of his bench. He had made some of the iron portion of the machine, so that he was reasonably familiar with its general construction. He had also oiled some portions of it. The machine had been operated there for several hours the day before the accident, for the purpose of testing it before sending it out. It worked satisfactorily in dry wood, but with wet wood it choked and the belts flew off. The superintendent and the vice-president of appellant were present at the test. When the belt slipped off the superintendent called appellee from his place to put on the belt while the machine was in motion driving the saws. There is some dispute whether the belt on the pulley close to the saws, or on the pulley about a foot away from the saws, was off, and which appellee was directed to put on.

The jury might well find under the evidence, that it was the belt on the pulley close to the saws, within three and three-eighths inches. While appellee was so attempting to comply with the directions of the superintendent, hisleft hand came in contact with the saws and was cut off. The negligence charged against appellant, first, is in the improper construction of the machine, in placing the pulley so near the saws; second, in directing the appellee, who was a minor, and alleged to be inexperienced in such work, to put on the belt while the machine was in motion, when it was so near the saws, without giving him instructions, or warning him of the danger; third, in the superintendent throwing, at the same time, a belt from the top of another pulley in such an improper manner as to cause the pulley at which appellee was working to suddenly and unexpectedly revolve, which caused him to throw his hand against the teeth of the saws.

The law applicable to this case is well settled. A servant assumes the hazard of all the ordinary parts of the service, or takes upon himself the risks incident to the undertaking. Clark v. C., B. & Q. R. R. Co., 92 Ill. 45; Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329. But not those which are extraordinary. Libby v. Scherman, 146 Ill. 553. The same rule applies to a minor, who has the intelligence and experience to understand and appreciate the danger. C. A. P. B. Co. v. Reinneiger, 140 Ill. 337; Hinckley v. Horazdowsky, 133 Ill. 359. The machinery is not required to be absolutely safe. If it is reasonably safe the law is satisfied. Weber Wagon Co. v. Kehl, 139 Ill. 644; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417. It must not, however, be so constructed that the slightest indiscretion on the part of the servant will prove fatal. T., W. & W. Ry. Co. v. Fredericks, 71 Ill. 296. Bor must the master, who knows the dangerous character of an act, order the servant to perform it in a manner that is dangerous (Drop Forge & Foundry Co. v. Van Dam, 149 Ill. 341; C. A. P. B. Co. v. Sobkowiak, 34 Ill. App. 319), especially if the servant is inexperienced in that matter (Consolidated Coal Co. v. Haenni, 146 Ill. 626), or the risk is not patent, without warning him, Same Co. v. Wanbaeker, 134 Ill. 66; Harris v. Shebek, 151 Ill. 287.

In this case the appellee was of that age, discretion and judgment that he could appreciate and understand the ordinary perils of the service which he was employed to perform. The act he was directed to perform, however, at the time of his injury, was extra hazardous in the manner in which it was required, which must have been known to the superintendent, and was not known, or at least so well known, to the appellee. Bo one, however skillful or experienced, should have been required to place the belt on the pulley so near the saws while the machine was in motion. Several witnesses testify that it was dangerous to do so. The saws revolved 2,200 times per minute, which was so rapid as to obscure the teeth of the saws, and a servant, hastening to obey an order of the superintendent, might not see the bluish circle they made, and thereby be misled into thinking the teeth were further removed than they really were. The evidence shows the appellee was not accustomed to working with rapidly moving machinery, but that the movement of the machinery in his department was slow. It also shows he was not warned of the danger in the act he was required to perform.

The questions presented as to the introduction of evidence and the instructions have been examined and no substantial error is observed. A fair trial was had, and the judgment is affirmed.