191 Mass. 269 | Mass. | 1906
This is' an action of tort under E. L. c. 106, § 71, with a count at common law, to recover for injuries sustained by the plaintiff while in the employ of the defendants and at work feeding fat or suet into a chopping machine called a hasher in their building at the abbatoir in Brighton. Proper notice had been given to the defendants, and no question is raised as to this or as to the pleadings.
The plaintiff came to this country from Ireland on May 6, 1901. He had worked on a farm, but never on machinery. On May 13,1901, he went to work for the defendants at their abbatoir. Here he was employed for two weeks in the cellar, wheeling fat on trucks, loading and unloading teams, and whitewashing. At the beginning of the third week, Hapgood, the defendants’ superintendent, told him that at noon of the next day he would put him at work on the hasher; and the plaintiff went to work on this machine the following day at noon.
One working on this machine stood at a bench or table, which was three and a half feet above the floor. At one end of this bench there was a hole eight or ten inches in diameter, opening into the hasher by a tunnel shaped receptacle, the top of which was flush with the top of the table and of the same diameter as the hole itself, and which tapered downward into one end of an iron cylinder box. This box contained a shaft running longitudinally with the box and extending entirely across the bottom of the tunnel, set with knives put on spirally so as to form a worm or screw. This shaft was attached to a fast and loose pulley operated by steam power, so that when the machine was running it made six hundred or seven hundred revolutions a minute. The diameter of the tunnel at its bottom where the knives revolved was five or six inches, and the distance from the opening in the bench to the top of the knives was about eight inches. The cylinder box was about twenty-four inches long and eight or ten inches square, and wholly encased the knives
The machine was placed on a platform or staging midway between the third and fourth floors of the building. The suet and fat to be hashed were brought up from the basement on an elevator, and placed on the table at the right hand of the man feeding the machine, and by him pushed along the table by hand into the mouth of the tunnel. After passing through the cylinder, the material came out at the other end a pulpy mass, and passed through a chute into a kettle on the floor below. All the mechanism was below the table and out of sight of the operator.
When the plaintiff went to work on this machine at noon, he found a man named Duggan at work upon it, and watched him for a second or two until he stepped one side, and then the plaintiff began to put the fat through the hole with both hands, as he had seen Duggan do, and continued this work for an hour, when Duggan returned. About a week afterwards, the plaintiff again worked on this machine in the same way for something less than an hour, while Duggan was away. On this occasion, while the plaintiff was working, as he testified, Hapgood came towards him, on the floor beneath the platform on which the machine stood, and made motions with his hands to indicate that the plaintiff should use both his hands in pressing the fat into the tunnel, and told him to do it in that way, and to put the fat through quicker, to “ press right tight into the machine with both hands ”; and the plaintiff did so, pressing it tight into the machine with both hands, while Hapgood stood there watching him.
The third time, on June 17 in the same year, while the plaintiff was loading fat into a truck, Hapgood said to him, “ Patrick, you go to your dinner at eleven o’clock and come back at twelve and go on to the hasher.” The plaintiff did so, and worked until one o’clock, when Duggan came back and began to do the plaintiff’s regular work, and the plaintiff continued to work on this machine. He testified that he went on doing .the work as Hap-
One Fairbairn, a mechanical engineer, described this machine and its operation substantially as already stated, and said that it was similar to the domestic machines used in families for making mincemeat; that when it was in operation a man could not tell anything about the internal parts of it; that the knives made between six hundred and seven hundred revolutions a minute, and at that speed could not be readily distinguishable as separate knives ; that the worm for pushing the fat along extended under the entire opening at the bottom of the tunnel; that all that any one could see, when looking down into the tunnel, if there was no fat to obstruct the view, was the part of the knives that went across the five or six inch circle at the bottom of the tunnel; that the worm is visible through the tunnel if empty when the machine is still, but when it is in motion, one looking in when there was no fat to obstruct his view, would see only the whirl of revolving machinery.
At the end of the plaintiff’s evidence, the material parts of which have now been stated, the judge who presided at the trial ordered a verdict for the defendants; and the case comes before us upon the plaintiff’s exceptions to his ruling.
The defendants contend that the case comes within the rule 'laid down in Chmiel v. Thorndike Co. 182 Mass. 112; Sullivan v. Simplex Electrical Co. 178 Mass. 35 ; Robinska v. Lyman Mills, 174 Mass. 432; and Stuart v. West End Street Railway, 163 Mass. 391. But in each of these cases the plaintiff either saw the knives or needles or revolving cylinders which constituted the danger or would readily have known of their existence by the use of ordinary care; and each one of these cases really turns upon the fact that the danger was obvious, so that the respective plaintiffs were deemed to have assumed the attendant risks, and stood in no need of instruction. Here the jury might have found that the plaintiff was put to work upon the machine when it was in motion and the danger of letting the hands get into the tunnel was not obvious, and when he was manifestly wholly ignorant of the situation and of the risks involved ; and that he was instructed to push the fat into the tunnel with both hands in a way that could be safe only if there was no danger in the hands getting into the tunnel. The whole mechanism of the machine was concealed from his view. In view of the instructions which the jury might find that he had received, they might also find that he was justified in believing that anything dangerous in the internal arrangement of the machine was situated further along in the body, and not directly under the tunnel. And if, as he testified, he followed exactly the directions which he received, they also might find that he was in the exercise of due care. We do not think that it can be said as matter of law that he assumed the risk. And the jury might have found that the accident was due to the negligence of Hapgood,
But the defendant contends that at the time of the injury the plaintiff was acting outside the scope of his duties, and really in disobedience of orders, because he continued to run the machine after one o’clock and after the return of Duggan; and the plaintiff himself testified that it was no part of his business to continue here after Duggan’s return at one o’clock. Mellor v. Merchants' Manuf. Co. 150 Mass. 362. Aziz v. Atlantic Cotton Mills, 189 Mass. 156. But there was testimony that on this day the superintendent simply told the plaintiff to go to work here at twelve o’clock, and nothing was said about the time at which he should leave this and go to his usual work. The jury would have a right to consider whether the plaintiff’s conduct in continuing to work where the superintendent had put him, lasting as it did for three quarters of an hour, was not known to the latter and approved by him. They might construe the language of the plaintiff on this subject in cross-examination as rather a complaint of the conduct of the superintendent in not relieving him from this work than as a statement that he was openly violating the orders which he understood to have been given him. This was a question for the jury to pass upon.
Exceptions sustained.