83 Me. 50 | Me. | 1890
Lead Opinion
The gravamen of the plaintiff’s complaint in his amended count is that he lost his hand while running the defendant’s lath machine, on account of his inexperience and the defendant’s omission to give Mm such information and instruction as were reasonably necessary and sufficient to enable him to appreciate the perils to which he would be exposed by using the faulty machinery in the course of his employment, and, with reasonable care on his part, to safely perform his work.
The plaintiff" engaged to perform carpenter work upon the defendant’s boarding house, already erected but unfinished, to commence as soon as the vuathcr would permit. He had never run a circular saw or other machinery, but had tailed at a rotary three days. Being short of hands in his mill, the defendant, while waiting for the weather to moderate so that work could be resumed upon his boarding house, requested the plaintiff’ to work his lath machine which required two persons. After being shown for fifteen to thirty minutes how to work it, the plaintiff, on March 27, was put in charge of his now employment wdth another employe to do the tailing.
From turn to six times a day, the sawdust, accumulating at the bottom of the spout in the edge of the water under the mill or sticking in the angle of the spout a short distance below the floor, filled it up ; when it became necessary to clean it out by one going down and removing the obstructing accumulation at the lower end and the other pushing the sawdust down the spout with a stick.
While being instructed in sawing, the spout did not happen to become clogged, and the plaintiff" received no instruction as to the mode of clearing it.
On April 9, after having prosecuted his work ten or eleven days without stopping the saw and while pushing the sawdust down the spout with a stick some two feet in length, his hand which held the stick came in contact with the lower edge of the revolving saw under the saw-bench which was about twenty-two inches above the mouth of the spout in the floor, and was so-severely lacerated as to necessitate amputation at the wrist.
This is not the case of an experienced workman set to operating machinery dangerous and demanding care which, nevertheless, he fully understands and voluntarily assumes the risk incident thereto. The usual danger of contact with such a dangerous implement as a circular saw in rapid motion is obvi ous to the eyes of all who have reached the years of discretion, when it is in plain sight. But the plaintiff’s injury was not caused by the revolving saw above the bench, but by the two or three inches of it which protruded through and underneath it and which was less than two feet from the floor and so hidden from view by the length of the bench and the upper horizontal strip three or four inches wide which secured in place the legs of the bench, as not to be visible to the workman’s eyes unless they were within eighteen or nineteen inches of the floor.
The inexperienced servant does not assume the risk of perils which he knows not of, and which are not called to his attention ; but of such only as he knows, or by the exercise of ordinary care, ought to know. Hull v. Hall, 78 Maine, 114.
We cannot decide, as matter of law, that the machinery under that saw-bench which the plaintiff wras obliged to use in the course -of his employment, wras in such a condition that a jury would not be authorized to find it unsafe and improper for a new beginner to be put to work upon without proper notice and reasonable instructions relating thereto.
Nor can we say, as matter of lavr, that a jury would not be warranted by the evidence in finding that contributory negligence was not imputable to the plaintiff. It would be absurd to suppose that the plaintiff recklessly destroyed his right hand. There is
The mere fact that the plaintiff shut dowm the saw the first two or three times does not conclusively prove that he appreciated the peril of not doing so. Numerous explanations suggest themselves when taken in connection with the time required to stop, and set in motion again the saw. And even if he did know the danger, such knowledge would not, as a matter of law, impute contributory negligence to him such as would forbid the finding to the contrary; for it "would be mere evidence of such negligence to be considered along with the other facts and circumstances in the case. Kane v. Northern Centr. R. R. Co. 128 U. S. 91. Guthrie v. Me. Centr. R. R. Co, 81 Maine, 572.
Moreover, without expressing our own opinion as to what the verdict should be, the fact that fair-minded men,— as seen by the want of unanimity on the part of this court, — .might reasonably reach different conclusions upon the issues whether the injury was caused by the contributory negligence of the plaintiff’, or by the negligent omission of the defendant to inform and reasonably instruct the plaintiff as to the peril to which he might be exposed in attempting to clear the defective spout without stopping the saw; we think that it was a question which under proper instructions should be submitted to the jury. Nugent v. B. C. & M. R. R. Co. 80 Maine, 70.
Case to stand for trial.
Dissenting Opinion
Mr. Justice Walton and myself are unable to concur in the opinion prepared by Mr. Justice Virgin, as it seems to us to conflict with legal principles well established by repeated decisions of this Court. The importance of these principles to the industries of this State impels us to express our dissent.
We think the plaintiff’s evidence clearly discloses tiro insuperable bars to the prosecution of his suit.
1. His own inattention, or want of ordinary care,— his neglect to take proper and available precautions against the danger,— contributed in causing the injury. Buzzell v. Laconia Co. 48 Maine, 113; Shanny v. Androscoggin Mills, 66 Maine, 420; State v. Maine Central R. R. Co. 76 Maine, 357; Lesan v. Same, 77 Maine, 85; Wormell v. Same, 79 Maine, 397; State v. Same, 81 Maine, 84.
2. The danger of injury was known to him, or would have been known to him, had he made proper use of the senses, intelligence and understanding he possessed. In either case the risk fell upon him. He had the choice whether or not to encounter the danger. Beaulieu v. Portland Co. 48 Maine, 291; Osborne v. Knox & Lincoln R. R. Co. 68 Maine, 49; Coolbroth v. M. C. R. R. Co. 77 Maine, 165; Wormell v. Same, 79 Maine, 397; Judkins v. Same, 80 Maine, 417.
Conceding, as stated in the majority opinion, that the defendant might have constructed his lath machine and its appurtenances so that the sawdust would not clog and pile úp,— and might have so enclosed the saw that an employe could not come in contact with its under edge ; yet under our law, as declared in the cases above cited, the owner or manager of a business plant affording employment to labor, properly if not necessarily, enjoys some liberty of judgment in constructing his mill, machinery and appliances, and in managing his business. He must not construct nor leave any pitfalls or mantraps. He must not make nor tolerate a semblance of security where there is really danger. Still he is not required to anticipate or provide against the heedlessness of others. • No one can successfully do that, for no one can foresee what the heedless may do.
The majority opinion, however, holds that the defendant may be in fault in not giving the plaintiff such information and instruction as was reasonably necessary to enable him to appreciate the perils to which he would be exposed in the course of his employment, and to enable him, with proper care on his part, to safely do his own work. The only omission that can be material in this case, was the omission to give the plaintiff information of the danger attending his .reaching 1ns hand with a stick under the saw table under the whirling saw,— and to instruct him to stop the saw before undertaking to push down the sawdust.
Conceding that the employer should inform a new employe of such dangers of the employment as are not apparent, and should give him sufficient instruction to enable him to avoid the danger,— it is also a reasonable and well-established principle, that the employer may assume that his new employe is not a senseless, mindless machine, hut that he possesses and will use for the benefit of his employe!'as well as of himself, the ordinary senses, intelligence and understanding of one of his age, unless
These principles are so fully and clearly stated in Wormell v. Maine Central R. R. Co., supra, and the cases there cited, that further citation of authority in their support is unnecessary.
Now to apply these various principles to the evidence in this case, let us review the situation, and in doing so, we may need to state some evidence not noticed in the majority opinion. The plaintiff was a young man twenty-three years old, of somewhat varied experience as an employe, and, from general observation,
After the first few times, however, the plaintiff omitted to stop the saw, and the succeeding clearings of the sawdust were made while the saw was in rapid motion. After some ten days in all of work at this machine, on one occasion (the time of the accident) the sawdust piled up, and the plaintiff', sending his helper below, undertook himself to reach under the whirling saw, which was revolving within two feet of and over the opening in the floor, and undertook to push the sawdust down through the opening with a stick held in his hand. He did not bend, or crouch down to look under the table, but worked with the saw and his hand hid from sight. The upper end of the stick struck the saw, the rapid motion of which caught up the plaintiff’s hand against its teeth, — whence the injury.
It is true he was not told of the danger of such an operation
It seems to us that the plaintiff’s evidence proves both of these alternative propositions so unmistakably and conclusively, that no verdict in his favor ought to stand. Coupled with his previous general knowledge, his ten days of running amachine, so simple as a lath saw, must have; made him familiar with its construction and operation. He stated in his testimony the diameter of the saw, and he must have known the thickness of the saw table. He .had constructed models of them from memory. He must have known that a saw of that diameter would project through and below a table of that thickness. That he appreciated the danger, at first, seems undeniable, for he then stopped the saw before putting his hand under the table. He was not told to do so, and we can imagine no other reason for his doing so, than an apprehension of danger if it were loft running. But all possible doubts of his knowledge of the danger, should be put at rest by his own declaration in his testimony, "I knew the saw was above my hand.” The danger then was known and visible,— visible to the mind’s eye,— the understanding, if not to the bodily sense.
This danger might have been easily avoided. The plaintiff need only have continued to observe the precautions he observed at first. His omission to do so seems to us unaccountable upon any other ground than heedlessness. The evidence discloses no other reason, and we do not see what other reason can be
Tf it be urged, as an excuse, that he forgot, or did not think of the danger, that he wns thinking about the sawdust, &c., the answer is, that it was his duty to think and remember,— his duty to his employer as well as to himself. Forgetfulness, thoughtlessness, however common are no legal excuses. The law requires prudence and care, even though most men may be imprudent and careless. Men in all walks in life are necessarily left by the law to suffer for their want of thought and care. No one is allowed to recover of another for injuries which he might himself have avoided by ordinary care.
"Whatever the omissions of the defendant, the plaintiff must prove affirmatively that he was ordinarily careful, and was honestly and excusably ignorant of the danger. We think the plaintiff’s evidence is irresistibly against him on both these points. It shows clearly that he knowingly, needlessly and carelessly put his hand in dangerous proximity to a circular saw in rapid motion. It also show's as clearly, that he must have known the danger, and that he chose to risk it, rather than take the trouble to avoid it. We think the court could and should say, as matter of law, that such facts appearing in his own evidence, effectually and doubly bar the plaintiff’s suit.