, 1892-04-29
RECOVER DAMAGES
"A Case in Which the Appellant
Failed.

Judgment of the Lower Court AZ
firmed- he Assumed the Appar.
ent and Greater Risk Connected
with tine Unfortunate Affair.
TNotice-AIl decisions Of the supreme
court will appear in The DAILY and WEEK.
LY TRIBUNE.
Frank Lewis, appellant, VS.. A. NJ. Simp.
son, respondent. No. 1858.
The appellant brought this action to re-
cover damages for personal injuries re-
ceived by him While working in a saWmill
alleged to belong to the respondent. AT
the trial in the superior court the plaintiff
was non-suited on the grounds that his ev-
idence showed the injuries he had received
were due in part at least to his own negli-
gence, and because his evidence failed to
show the defendants ownership of the mill.
The first ground only will be examined.
1t appears that APPELLANT had been at work
at the mill aforesaid for some sixteen years.
The last year he was engaged in taking
away lumber from the pony saw, or "off-
bearing'' as it is sometimes called lust
previous to getting hurt he had been clear
ing the track by shoyeling away the saw
dust. There was an elevator to remove
this saWdust which at the time was not
running, and the plaintiff went below to
adjust the belt thereon and set the same in
motion. 10 do this it was necessary to get
on the opposite side of the shaft which OPP
Grated the belt Tor the purpose of placing
the belt on the wooden pulley Of the ele-
Vator, and then return and put it upon the
iron pulley of the shaft. This shaft was
about two feet above the lower floor, and
the plaintiff in performing this service usu-
ally crawled under it to get at the other
side, as he says it was too high for him to
9tpT 1u TTVOJ1 "a
in question he did crawl under it in going,
but after placing the belt on the elevator
pulley he sought o return by going to
beam only a step or two distant upon
which one end of the shaft was supported,
and by walking along this beam and step
ping over the end of the shaft get across it
IN this manner. He testified that
he had walked over it in this way
a good many times. The shaft was Teyoly-
ing rapidly at the time and there was a set
screw in this end Of it which projected
about an inch beyond the collar. It was
not necessary to take either high or long
step to get over as it with the collar and
set screw was less than foot high above
the beam and did not extend along it more
than foot. The place was not well light
cd and the plaintiff claims that the steam
was escaping and blinded him some, ANY
how, in stepping over the shaft the set
screw caught in the plaintiffs oYeralls and
In some manner broke one Of his legs in
three places.
This belt was usually left in position to
run the elevator and was only taken off oc-
casionally when repairs were to be made or
for some special purpose, and it seemed to
be no ones business in particular to re-
place II. The nIaintiff testified that most
ANYBODY nJlt If on. That r wo,7Id remain
on for a week or a month al a time, and
sometimes RI would have II IL acinetad
two or three times IL A dav If somathino
broke. That whenever II vas If and he
wanted, IA use the elevator IL would o.
down 70 fix II and that he had seen ntheeT
Workmen walk along this beam when tbev
went there He claimed howavar tbo{
placing this belt was no mart Of the WORK
which he had been ASSIGNED to him to do
when he was nlacad at work m tha r,oT,1r
saw blt that he did it IL consennarra If
the foreman having told him "a .egiva a
band WHENEVER II r1eeds heln ana 11ad ~ IL
done.n It was not claimed that this direo-
ton had reference 70 anv narticTlar ser
vice but that If was onlv in the nature If a
general Instruction Ia the effect tbat tbe
plaintiff was exnected to lend q hand
wherever needed when NOT engaged at the
pony saw. The appellant did NOT saw when
this instruction was glven him but the re-
spondent claims t71e reasonable infarance
to be drawn from his testimony il fhaf
it was given ia him when he was
nIaced AT work Al tbe nonv saw
and H was part of bfs TepnIar
duties. However this NAV he we are IF
the opinion that this general direction was
not sufficient to establish any different
rule of liability in nerfornnino t.His nartic11-
lar service from that which Ordinarily oh
tains between master and servant. If was
hardly sufficient in itself to imnosa Tnon
him the duty of performing aTv new or
more than ordinarily dangerous service il
there was any greater decree Of DANCER AZ
erally to other employments about the
mill or of recurring him to perform SER
vices that he was not qualified to perform.
Nor is it apparent that he so understood II
or that he considered there was any esnec.
ial or Unusual dancer connected with fhis
matter, This direction was not an explicit.
one any5 sense. it rather left HE manner III
complying with il "a the apnellanf;s own
discretion. 1T did not aIlude To this es-
pecial service even general wav hv any
mention of il. and il is NOT claimed that he
received anv specific direction To nerforn
this service at the time in Question. or at;
all. We are strongly inclined to think
under the circumstances which he himself
shows that electing to perform it, it must
be considered as a BART of liz general il, m sm.
ployment or duties. But it is not necessary
neggence UPON Tie BART "a the respondent +
It was not claimed that the machinery was
9edecelVe, 9ob Or tnaG 5nls Part o. u was not
nothing to show that Il was vas particIar oftG ar
dangerous or that anv one had heen in