ELLA W.
ALBERT, as Administratrix of the Estate of Frank H. Albert, Deceased,
Respondent,
v.
McKAY & CO.
(a Corporation), Appellant.
S. F. No. 7111.
Supreme Court of California.
February 28, 1917.
174 Cal. 451, 163 P. 666 (1917)
APPEAL from a judgment of the
Superior Court of Humboldt County. Clifton H.
Connick, Judge.
The facts are stated in the opinion of the court.
Denver Sevier, Sevier, Coonan & Ricks, and Denson,
Cooley & Denson, for Appellant.
Puter & Quinn, for Respondent.
SLOSS, J.
For some years prior to March 10, 1913, Frank H.
Albert had been in the employ of the defendant, McKay & Co., a
corporation owning and operating a lumber-mill at Eureka, in Humboldt
County. On the day named, Albert's clothing was caught in an appliance
attached to one of the shafts used in the transmission of power for
the mill machinery, his body was drawn against the rapidly revolving
shaft, and he received injuries which caused his death. He was
survived by a widow and a minor child. This action was brought by the
widow, as administratrix of his estate, to recover damages for the
alleged negligent killing of her intestate.
Upon the trial the plaintiff recovered a verdict in
the sum of eight thousand dollars, and judgment was entered
accordingly. The defendant appeals from the judgment, bringing up the
evidence by means of a bill of exceptions.
Albert's employment was that of a saw-filer. He
worked in a filing-room, which was on the sawing or mill floor of
defendant's mill. The engines, together with the shafts, pulleys, and
belts for the transmission of power, were located upon a lower floor.
In the filing-room were several machines,
which were used by Albert in his work. These were driven by a belt
running through the floor and connecting with a pulley attached to a
shaft running under the floor of the filing-room. One end of this
shaft was set in a box or bearing. At the point where the shaft
entered the box, a collar was attached to the shaft by means of a
set-screw, which projected five-eighths of an inch beyond the collar.
Some twelve or thirteen inches from this collar a pulley, with a
diameter of thirty inches, was attached to the shaft. The shaft in
question received its power from the main shaft driven by a belt from
the engine. A "tightener" was used in transmitting power to the main
shaft. The shaft was set in motion by lowering the tightener so as to
bring it in contact with a belt connecting with the engine. Raising
the tightener stopped the main shaft and with it the shaft which
furnished power to the machines in the filing-room. The precise way in
which the fatal accident occurred was a subject for inference from the
circumstances shown. No one was with Albert when he was caught in the
machinery. A fellow-employee found Albert's lifeless body hanging on
the shaft, between the box holding the end of the shaft and the pulley
which we have described as being twelve or thirteen inches away.
The complaint was in three counts. In all three it
was charged that Albert had occasion, in the performance of his
duties, to reach across the shaft in order to adjust one of the
machines used by him in the filing-room above, this machine being held
in place by means of bolts passing through holes in the floor, and
fastened by nuts attached and tightened from below. The first count
alleged that Albert's clothing was caught in the protruding set-screw
which has been described. The averment was that the defendant
negligently left this set-screw unguarded, and that this negligence
was the cause of Albert's death. The set-screw, it was alleged, could
not be seen when the shaft was in motion. The theory underlying this
cause of action was that Albert undertook to do his work of adjustment
while the shaft, and the set-screw upon it, were revolving.
At the close of the plaintiff's
testimony defendant moved for a nonsuit. The motion was granted as to
the third count, there being no evidence tending to show that the
tightener had dropped as charged in this count. The main question
raised by the appeal is whether the verdict can be sustained on either
the first or second cause of action alleged.
The appellant urges with much earnestness that the
evidence totally fails to show that Albert was acting within the scope
of his employment when he undertook to work in the place where he met
his death; that, in fact, the activities in which he was then engaged
were undertaken in direct violation of the orders of his employer.
This point, if sustained, would answer the plaintiff's claims under
both the first and the second count. The negligence charged in the
first count is the failure to comply with the employer's duty to
furnish his employee with a reasonably safe place to work. The duty is
limited to "the premises where the employee is required, for the
purposes of his employment, to be." (Kennedy v. Chase,
119 Cal. 637, 640,[63 Am. St. Rep. 153, 52 P. 33, 35].) So, also
(referring to the second count), if Albert, while working in a place
where he was not required to be, was injured by the starting of the
machinery, such starting would not constitute negligence in the
absence of proof that the defendant knew or had reason to know that
Albert was in a position of danger. There is considerable evidence to
the effect that Albert was directed to confine his work to the
filing-room and not to go on the floor below except when the mill was
not in operation. More specifically, it was testified that he had been
forbidden to change the location of the filing-room machinery. But
there was evidence of contrary import, and, on the whole case, we
think the jury was warranted in concluding that Albert was acting
within the scope of his duties in going to the lower floor to fasten
the bolts which held the filing-room machinery in place.
But, conceding so much, we must still hold that the
evidence totally failed to show any negligence on the part of the
defendant. The breach of duty charged in the first count was that the
defendant improperly left the set-screw unguarded. That it was so
unguarded at the time of the accident is clear. But several witnesses
testified that the collar and set-screw had been protected by a guard
for a considerable time prior to the accident. The protection
consisted of a piece of rubber belting over this part of the
machinery, and a drip box or pan under it. Four witnesses so stated,
and their testimony is uncontradicted. One of them testified, further,
that on the Wednesday or Thursday before the accident (which occurred
on a Monday), Albert had borrowed a bar from the witness, and had
pried off the belting with it, removing the drip pan at the same time.
This statement was also uncontradicted. The testimony of these
witnesses could not be arbitrarily discarded. There was nothing to
throw doubt on its credibility. On the contrary, other evidence tended
strongly to fortify the probability of the claim that Albert had
removed the protective covering in the process of changing the
position of the shaft — a change which was actually made a few days
before the accident, and was necessary to the moving of the machine in
the filing-room. The rule requiring the master to provide a safe place
for the servant does not apply when "the place at which the work is to
be done, or the appliances for doing the same, are to be prepared by
the servant himself." (Callan v. Bull, 113 Cal. 593,603,
[45 P. 1017]; Peterson v. Beck, 27 Cal.App. 571,[150 P.
788].) If the cause of Albert's injury and death was the unguarded
set-screw, the condition was one which he himself had brought about,
and which could not be charged against the defendant as an act of
negligence.
The only remaining basis for sustaining the verdict
is that set forth in the second count, i, e., that the machinery was
negligently started after Albert had begun to work. Here, too, the
evidence totally fails. Testimony of numerous witnesses is unanimous
to the effect that the machinery, including the shaft in question, was
running before Albert went to the lower floor, and that it was not
stopped until the discovery of his body on the shaft. There was no
competent evidence in contradiction of this. Two witnesses for
plaintiff testified that
immediately after the accident they had met Milotte, the master
mechanic of the mill, one of the employees charged with the duty of
raising and lowering the tightener, and that Milotte was pale and his
voice trembled. To one of these witnesses he had said, "Don't talk
about it. I cannot stand it. I am sick," and to the other, "For God's
sake, go in and take that man off the shaft." This testimony is relied
on by the respondent as tending to show that Milotte had lowered the
tightener, thus starting the machinery in motion and causing Albert's
death. To give it any such effect would be to indulge the wildest
surmise and conjecture. Milotte's words and actions may have indicated
no more than the horror and distress which any man might feel on
seeing that another had met violent death. They certainly contained no
basis for the inference that Milotte had been guilty of any wrong;
still less that he had committed the act of negligence described in
the complaint. The jury could not view the evidence of Milotte's
conduct as overcoming the direct testimony that the machinery was
running when Albert approached the shaft, without disregarding the
instruction of the court that their verdict "must be based upon a
fact, or facts, and not on speculation."
The respondent points to one other item of evidence
as tending to show that the machinery was not running when Albert went
to work. Among the witnesses who testified that the machinery had been
running continuously was one Elener, a blacksmith in defendant's
employ. The proper foundation having been laid by cross-examination,
the plaintiff sought to impeach him by calling in rebuttal a witness
who testified that Elener had said, shortly after the accident, that
the machinery had not been running, and that somebody must have left
the tightener down after Albert had started working. When a witness is
impeached by proof of prior inconsistent statements, the effect is
merely to discredit him as a witness. The former statements made by
him are incompetent for any other purpose. They do not constitute
evidence of the truth of the facts so stated by him. (2 Wigmore on
Evidence, sec. 1018;Keyes v. Geary Street etc. R. R. Co.,
152 Cal. 437, 441,[93 P. 83]; Worley v. Spreckels Bros. Com.
Co., 163 Cal. 60, 71,[124 P. 697].)
In the absence of any conflict, the jury had no
right to find a verdict based upon the theory that the machinery had
been negligently started after Albert had placed
himself in close proximity to the shaft. This is not a case in which
such negligence can be inferred under the doctrine of res ipsa
loquitur. The rule has no application to the facts of this case.
The plaintiff charged, in the count under discussion, that Albert's
death was caused by the negligent starting of the machinery. If there
had been any evidence to show that the machinery was started after
Albert took his position near the shaft, it might be said that the
mere occurrence of the accident warranted an inference that the
defendant 'had been negligent in setting the shaft in motion. But such
inference cannot, of course, be indulged in face of the undisputed
testimony that the machinery had not been started at all, and
therefore could not have been started negligently. The presumption
that Albert himself exercised ordinary care (Code Civ. Proc., sec.
1963; Crabbe v. Mammoth, C. G. M. Co.,168 Cal. 500,
506, [143 P. 714]), relied on by respondent, cannot avail to support
the verdict in the absence of any substantial evidence tending to show
a breach of duty by the defendant.
The judgment is reversed.
Shaw, J., and Lawlor, J., concurred.
Hearing in Bank denied.
