RICHARDSON v. SWIFT & CO., 96 F. 699

WOODS, Circuit Judge. James P. Richardson, the plaintiff in error, was the plaintiff in the action, which was brought to recover for personal injury incurred while in the service of the defendant in-error, Swift &Co., at Kansas City. The court directed a verdict for the defendant, and on that action error is assigned.

Summarized according to the declaration and the evidence, the case is this: The plaintiff was called away temporarily from Ms accustomed work, which did not expose him to the dangers of contact with machinery, and put to feeding fat pork, already so finely cut as to be in a mushy slate, into the hopper of a sausage grinder, using a shovel for the purpose. Skilled or experienced men were commonly employed to do that work, and they knew, but the plaintiff did not know, and when assigned to this work was not informed, of the occasional formation of thin crusts of meat in the hopper above the knives.

The plaintiff, while at work, observed that the meat was standing without apparent movement within two inches of the top of the hopper, which was about a foot deep, and, supposing it to be packed and clogged in the narrow passage near the knives, put-his left hand upon it or into it for the purpose of pushing it down. The mere crust, which was actually there, broke at his touch, and with it his hand went down, was caught and cut off, and his arm drawn in and so mangled that amputation above the elbow was necessary.

Shortly after he was hurt, the plaintiff subscribed a statement which in some particulars was inconsistent with his testimony. In directing the .verdict, the court said: “There is no claim in this case, or at least no foundation for a .claim, of any defect in the grinding machines which were’ used there; and the only claim which is made, practically, of neglect on the part of Swift & Go., is in the fact that the plaintiff was not instructed- with regard to the liability of the meat (this fine class of meat used for the Diamond B sausage) * ⅜ ⅜ to form a skim or surface.

He admits that he knew of the danger which would exist if his hand got down to the worm. He placed his hand upon the crust to force it down, or work it down, whichever it might have heen, and made a miscalculation. His hand dropped down or slipped down, and it was an accident for which the defendant, Swift <& Co., cannot be held chargeable.” The question is a close one, but we think the case should have been left to the jury.

While the plaintiff knew the location of the knives, and the danger involved in thrusting or allowing his hand to go to the bottom of the hopper, his testimony was that he knew nothing of the formation of crusts of meat in the hopper, and of the peculiar danger on that account to which he was exposed.

Whether the defendant was guilty of actionable negligence in not having informed him of that phase of danger, and whether the plaintiff was himself free from contributory fault, were questions of fact, which, under proper instructions, should have been submitted to the judgment of the jury. ' In a recent case we have said that, when there is doubt of the right of a party to go to the jury, “the doubt should be resolved in favor of the right” (Nyback v.

Lumber Co., 90 Fed. 774); and the suggestion is especially applicable when the issue is one of negligence, or the like, which ordinarily must be determined by inference from the circumstances proved, rather than upon direct evidence. We dissent from nothing to be found in the opinion in Cole v. Railway Co., 71 Wis. 114, 37 N. W. 84, and other cases cited. In no case of which we have knowledge has it been held, and we do not hold, that the mere fact that the employer requests his employé to perform a temporary work, outside of his ordinary employment, is a violation of any duty which he owes to the employé.

Whether it be, depends always upon the circumstances.

In the language of the opinion in the Cole Case: ' “If the particular work ordered to be done is of a dangerous character, and one which requires peculiar skill in its performance, and the person directed to perform such work has not the requisite knowledge or skill for doing the work .with safety, and such want of skill or knowledge is known, or might be reasonably siippt>sed to be known, to the émployer, in that case the direction of the employer' to do the work might be justly held to be a violation of the duty which he owes to his employe, even though the employs undertook to do the work without objection or protest on his part.” It is of little or no significance that the plaintiff in error was called away front’ his accustomed work.

The defendant is liable on the proofs, if at all, not for failure to inform him of the ordinary dangers of the work to which he was assigned, but for the failure to warn him of the special danger, which, for the present purpose it is assumed, was of a character which a man of ordinary experience and intelligence was not likely to understand or apprehend. Whether if: ivas of that character was for the jury to say.

It is not correct to say of the plaintiff that he “knew it was dangerous to put his hand into the hopper while the worm was revolving.” If the hopper had been full of meat, as it seemed to be, there would have been no necessary danger; and, if he had known of the condition or of the possibility of the condition of the meat being as it was, he could, with caution, have inserted his hand without the least probable risk. The question of the negligence of the master cannot be determined as a matter of law.

There may he little or- no dispute about the facts and circumsTanc.es in evidence, hut whether the inference of mixed law and fact shall be one way or the other can rarely be so clear, and was not in this case so clear, as to justify a withdrawal of the question from the jury. Much testimony was taken, and something has been said in argument, about the location of the sausage machines so near the wall that they could not have been fed from the side next to the wall, hut we do not perceive actionable matter in that alone.

If the plaintiff is not entitled to complain that he was not properly informed of the peculiar danger which has been considered, he is left, it would seem, without ground for saying that he did not assume whatever risk was involved in being compelled to stand on one side rather than the other of the machine. In that respect there was no concealmen t of fact or of probable consequences. In respect to the amended counts of the declaration to which demurrers were sustained, if there was error, it has not been shown to be material. Under the remaining counts, or some of them, the evidence offered was admissible.

The judgment below is reversed, with direction to grant a new trial.