
    E. E. Mastin et al. v. I. H. Levagood.
    Masteb and Sebvant — Dangerous Machinery — Diability for Damages. When the owners of a horse-power threshing machine are guilty of gross negligence by leaving the bevel wheel and cogs uncovered» knowing them to be imminently dangerous to human life and limb in this uncovered condition, and a workman engaged in threshing with the machine in this condition attempts to oil the cylinder without the knowledge of the uncovered condition of the bevel wheel and cogs, and in this attempt loses his hand, the owners of the machine are liable for damages occasioned by such injury.
    
      Motion for Rehearing.
    
    The facts appear in Mastin v. Levagood, ante, pp. 36 et seq., and in the opinion herein, filed February 6, 1892.
    
      
      Keller & Dean, for the motion.
    
      Grattan & Grattan, contra.
   Per Curiam:

We have been asked to reexamine the grounds of the opinion handed down by the commission. We have done so with great care, but the result has not changed our former conviction. The authorities cited by the counsel for plaintiff in error concerning inter meddlers and volunteers do not, we think, apply in this case. At the time that Levagood was injured he was not a mere intermeddler or volunteer. There is some evidence to show that his duties did not require him to confine himself to pitching grain only. On the day of the injury, E. E. Mastín, one of the owners of the threshing machine, was driving the horse-power. Jack Mastín and Wm. Rankin were feeders, but Jack Mastín, whose father owned one-third of the machine, seemed to act as the boss of the work. When the machine was set up and ready to work, the horse-power got out of fix, and both the Mastins asked Levagood to help fix the machine, and with' a wrench he took some caps off the bolts of the machine. Rankin, who is experienced in the running of threshing machines, testified, among other things, “that he asked Jack Mastín to oil the cylinder, but as he was sick, and down on his knees and hands, gagging from dust, he then told Levagood to oil the cylinder.” He was asked:

“Q,. It wasn’t the part of anybody’s duty to do that except the hands or men running with the machine? A. Well, the threshing-machine hands, they generally do ask others when they are attending the separator, or sick or something that way, they ask some one that is close by; I have done that.
“Q,. That isn’t the rule, I believe. A. Yes, that has been with us.
“Q,. You have run a machine? A. Yes, sir.”

It also appears from the evidence that when the Mastins were operating the threshing machine a few days before the injury, at Mr. Thresher’s, Mr. Applegood (nota regular feeder) was permitted to feed, and also to oil the cylinder after the shield was off. Jack Mastín, the boss of the work, testified about the accident, among other things, as follows: “Well, I don’t know much about it. I was sick, lying down. Levagood came and asked me for the oil can; I don’t know what he was going to do with it. ... I told Levagood I didn’t know anything about where the oil can was.”

“ Q. Did you ask him what he wanted to do ? A. No, sir.
“Q,. You told him to hunt around? A. Yes, sir.”

On account of the foregoing, and other evidence contained in the record, we cannot say that the instructions were erroneous, or the verdict unsupported.

The motion for a rehearing will be overruled.  