Opinion
Argued March 11, 1889
Decided March 26, 1889
Roscoe H. Channing for appellant. J.W. Covert for respondent.
When the plaintiff was injured the defendant was engaged in preparing tin plates for roofing. The plates were prepared, in part, by a stamping press which had two dies, an upper and lower one, fourteen inches long and twenty inches wide. The lower die was immovable and the upper one movable, having a vertical stroke of about two inches. When the upper die was raised, for the purpose of admitting a plate, it was stopped and held in position by a clutch which was held in place by force supplied by a strong spiral spring, the action of which was controlled by the foot of the operative applied to a treadle. When the operative had placed the plate on the lower die in proper position for stamping, he pressed his foot on the treadle, compressed the spring which released the clutch and the upper die was forced by the power of steam down on the plate lying on the lower die.
At the date of the injury, April 17, 1886, the plaintiff was seventeen years of age, and had been employed by the defendant for two years, and for one year had operated this press, and was familiar with its working and its dangers. At the date named, the fingers of the plaintiff's right hand were caught between and crushed by the dies, for which injury he seeks to recover compensation, upon the ground that the defendant negligently suffered the press to be out of repair. The only defect suggested by the evidence is that the clutch which held the upper die in suspension was not held securely in its place and would fly back, or out of position and permit the upper die to descend upon the lower one without the application of the usual force to the treadle, which defect the plaintiff asserts caused the injury. The plaintiff testified that on, at least, three occasions, before he was injured, the upper die was accidentally forced down upon the lower one without the application of force to the treadle. The first occasion was about two weeks before he was injured, and he reported the fact to the foreman who, after some examination, reported the press in good order; that the second occasion was on the day before he was injured, which he reported to the foreman, who again examined the press and reported it all right. The third occasion was about two hours before the plaintiff was injured. He again reported to the foreman that the press was out of order and he promised to fix it after the work for the day was done. The plaintiff continued to operate the press until about half past four o'clock, at which time, while engaged in trying to push from the press a plate of tin with his fingers instead of a stick, the upper die accidentally descended and crushed the fingers of his right hand. The plaintiff testified that he did not know wherein the press was out of order; and no witness was called who did know. Three witnesses were called by the defendant, who testified that they saw the press about the time of the accident and that it was not out of repair or defective. The plaintiff testified that a stick was provided for moving the plates between the dies, and that there was posted on his and all of the presses a printed notice in these words: " Employees are forbidden, under any circumstances, to put their fingers or hands under these presses."
The plaintiff also testified that defendant's superintendent Cooper, and its foreman Rakestraw, had, on different occasions, reproved him for putting his fingers between the dies and warned him of the danger, and that he was accustomed to disregard the rule, and that on a former occasion one of his thumbs was injured between the dies. The only excuse given by the plaintiff for his frequent violation of the rule was that he was required to stamp thirty-five boxes of tin plates for a day's work, and that he could work faster with his fingers than with a stick, and that on the occasion of the accident the plate stuck to the lower die, which he could more readily remove with his fingers than with a stick. A co-employe testified that he and the plaintiff exchanged works two or three hours before the accident, and that the plaintiff told him to work rapidly as he wished to finish his thirty-five boxes by half past four and leave the factory. This the plaintiff did not dispute, and it is suggestive of a possible cause for the accident. According to the plaintiff's evidence, he voluntarily put his hand between the dies, in violation of the well-known printed rule and of the oral instructions of the superintendent and of the foreman, and also in the face of his personal experience of the danger of such conduct. We fail to find the slightest evidence that this act was necessary or excusable, and it was certainly not done in ignorance of the danger, if it is true that about two hours before the plaintiff was injured the upper die accidentally fell. He had been very recently warned of the danger of putting his fingers between the dies, and under such circumstances he was very negligent in not regarding the rule and the warning; and this negligence directly contributed to produce the injury complained of.
We think the trial court should have nonsuited the plaintiff upon the ground of contributory negligence. For this error the judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.