Albert v. Mckay & Co.

174 Cal. 451 (1917)

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Nature of the Case

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Facts

Frank had been in the employ of D when Frank’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. This action was brought by the widow, as administratrix of his estate, to recover damages for the alleged negligent killing of Frank. No one was with Frank when he was caught in the machinery. His lifeless body was found hanging on the shaft, between the box holding the end of the shaft and a pulley. P alleged three possible causes of negligence. One from a protruding screw set and the other two were based on the premise that the shaft was not moving when the work began but was negligently engaged by D causing P’s death. On the first count, several witnesses testified that Frank had pried off the belting 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. 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 P 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 P as tending to show that Milotte had lowered the tightener, thus starting the machinery in motion and causing Frank's death. D moved for a nonsuit. The motion was granted as to the third count but denied for counts 1 and 2. P got the verdict for $8000 and D appealed.