88 Vt. 537 | Vt. | 1915
This is an action on the case for negligence in failing to provide a safe saw rig and in'failing to give the plaintiff proper instructions in the use of a circular saw on which he was injured. The plaintiff was employed in the parts-packing room, so called, of’ the defendant’s scale factory. The injury complained of consisted of a deep cut across the palm of the left hand caused by the hand coming in contact with the saw that plaintiff was using in the course of his employment. The evidence tended to show the following facts:
On the day of the accident, July 19, 1912, the plaintiff was using the saw to split a short piece of board. He was using
The plaintiff was set to work by the foreman of the packing department, one Corfield, and was told to do what one Noyes, an assistant foreman, instructed him. Noyes and the plaintiff usually worked on the same side of the room and the same side of the saw-table. The evidence was conflicting as to when the plaintiff first commenced to use the saw. Plaintiff testified that he did not use the saw until about one week after entering the department and that from that time until the accident he used it seven or eight times a day, amounting in all to about fifteen minutes per day. The defendant’s evidence tended to show that he was not allowed to use the saw for two or three weeks after entering the depart
The plaintiff testified that he had never used a circular saw before, nor seen one in use, aside from this one, and knew nothing about it; that he was not told in sawing a board to reverse it and did not know that such method ought to be employed. His evidence tended to show that he did not understand the nature and condition of the saw and saw-table in question except what he had learned by using it and observing others use it; that he was never told anything about the guard or spreader, nor what it was used for; that'he did not know what it was; that he had never noticed any one using it, but that he supposed it was for use in connection with some other work that was done with the saw; that he thought it was down about half the time; that it was up away from the saw at the time of the injury; that it did not interfere with the splitting of a board when it was down, as the wheel then entered the saw-cut. He further testified that no board ever jumped with him when he was using the saw before the time of the accident, and there was no evidence that he was instructed that there was any danger in that regard.
The evidence as to instructions was conflicting. The plaintiff testified that Noyes told him to be careful not to cut his fingers and that he received no other or different instructions. The defendant’s evidence tended to show that the plaintiff was fully instructed in the use of the saw, both by Corfield and Noyes, and was shown how to raise and lower the guard or spreader; that several boards were put through the saw while plaintiff watched and he was instructed how, in splitting a short board, it should be run about half way, then drawn out, reversed and sawed from the other end to meet the first cut, to keep the operator’s hands from the saw; that plaintiff was given instructions as to starting and stopping the machinery
The defendant’s foreman was first called as a witness by the plaintiff and later by the defendant. In his direct and cross-examination by the plaintiff he testified that in sawing a board the same ought to be sawed half way, then turned end for end and the saw-cut completed from the opposite end, in order to prevent the board’s binding on the saw and jumping up, that being the safer way to saw a board; that if such course were not followed the board was liable to “buck” or jump up; that if the guard or spreader was not down in position it was the safest way for the operator to run his left hand by the saw in order to hold down the board and thus prevent it from “bucking” or flying up. Another witness called by the plaintiff testified that in holding a board down on a saw-table, the operator should never let his hand go past the front edge of the saw.
The evidence tended to show that the saw in question when in motion made about 2400 revolutions per minute. Plaintiff’s evidence tended to show that a board will occasionally jump on a saw-table and that this may be caused by the spring of the table. The saw itself was not produced in court and there was no evidence as to its condition at the time of the injury, further than what was furnished by the board, which the defendant produced as the one that was being.sawed at that time. The plaintiff claimed that the board produced was not the one in question. The defendant produced the saw-table in court with a saw therein similar to the one in use at the time of the accident, and the table was an exhibit in the case. One Clark, called by the plaintiff as an expert, testified that the spring in the table before the jury would be sufficient to make a board jiunp. There was no evidence respecting defects in the table, except such as was furnished by the table itself and the above testimony by Clark. The defendant’s evidence tended to show that the table stood firm in the factory, After Clark had testified as above, it was discovered by one of defendant’s witnesses that the table, as it was being demonstrated in court, was jacked upon a cog wheel on one side. The witness released the cog, making the table somewhat firmer, and testified that it stood that way in the factory and not raised on the cog.
the part of the defendant is established; (2) That the plaintiff assumed the risk; (3) That the plaintiff was guilty of contributory negligence. The court overruled the motion and defendant was allowed an exception as. to each ground of the motion. The defendant also excepted to the ruling of the court that the plaintiff could go to the jury on the second count charging negligence in failing to provide a safe saw-table and saw-rig. The court submitted special questions which the jury answered as follows:
Q. Do you find that the defendant was negligent in not furnishing the plaintiff a reasonably safe saw-bench and saw? A. Saw-bench, yes.
Q. Do you find that the defendant was negligent in not giving the plaintiff instructions in the use of the saw? A. Yes.
On the ground of the motion that negligence on the part of the defendant was not established it is unnecessary to consider whether there was sufficient evidence to go to the jury under the second count of the declaration, for the special findings of the jury clearly indicate that their verdict is based upon negligence under both counts; and it will be supported, if the evidence of negligence under the first count is found sufficient. The negligence charged in the first count was in substance defendant’s failure to warn the plaintiff of the danger that the circular saw in question would cause a board in the process of being sawed thereon, suddenly and without warning to fly up at one end with violence and thereby the hand of the person operating the saw be thrown against it and injured; and. failure to instruct the plaintiff how to avoid such danger. There is in this count no allegation of any defect in the saw or saw-table; so the negligence charged relates to the master’s failure to warn .and instruct in relation to a danger which existed without fault on his part.
The law concerning the master’s duty to instruct his servants is well settled and so well understood that it is unnecessary to go into any extended discussion. The general principles are stated in our own cases, among which are Reynolds v. B. & M. Railroad Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908; Williamson v. Sheldon Marble Co., 66 Vt. 427, 29 Atl. 669;
The measure of the master’s duty to warn and protect his servant from the dangers of his employment depends upon the circumstances of each «case, including the degree of intelligence and the experience or lack of experience of the servant. He is under no duty to warn a servant of ordinary intelligence of dangers which are obvious, but, in determining what dangers are obvious, the experience or lack of experience of the servant must be taken into account. Where there are hidden or latent dangers, though incident to the employment, of which the master knows, or in the exercise of reasonable care ought to know, and which he has reason to believe the servant does not know, or from ignorance or inexperience is not capable of understanding or appreciating, and so will not be able to protect himself from injury because of them, it becomes the master’s duty to give suitable warning and instructions concerning such dangers. Dooley v. Sullivan et al., 218 Mass. 597, 106 N. E. 604; Pittsburg &c. R. Co. v. Hewitt, 102 Ill. App. 428; Ciriack v. Merchant’s Woolen Co., 151 Mass. 152, 23 N. E. 829, 6 L. R. A. 733, 21 Am. St. Rep. 438; Kaezimarek v. Guedar &c. Co., 148 Wis. 46, 134 N. W. 348, 44 L. R. A. (N. S.) 779, Ann. Cas. 1913 A. 1139; Martin v. Jerry Madden Shingle Co., 168 Mich. 175, 130 N. W. 614, Ann. Cas. 1913 C. 124, note 128; Hadan v. White River Lumber Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29 and note.
The master’s obligation in this regard is not discharged by informing the servant generally that the work in which he is engaged is dangerous; and especially is this so when the particular hazard is latent or concealed. In such case it becomes the master’s duty to warn the servant of the particular or peculiar danger that attends the service. Bailey Mas. & Ser., 112. Thus it is seen that the master’s duty is commensurate with the servant’s necessity in this regard, provided the master
We have already indicated that before the duty arises it must appear that the master knew or ought to have known of the existence of the danger complained of. In case of injury in the operation of a machine such as a circular saw, the ordinary danger of which is obvious, something more must be shown than the fact that the machine by its unusual and unaccountable behavior upon a single occasion injured the plaintiff in a way that was not obvious. It must be shown that the master could, in the exercise of reasonable caution, have apprehended such an accident. Carrington v. Mueller, 65 N. J. L. 245, 47 Atl. 564.
We are of the opinion that on the evidence in the ease viewed in the light most favorable to the plaintiff the court properly ruled that the plaintiff was entitled to go to the jury on the first count of the declaration. .It fairly appeared that the plaintiff’s injury was occasioned by the jumping up or “bucking” of the board which he was sawing. The evidence tended to show that this was liable to happen without reference to any defect in the saw or saw-table, owing to the binding of the board on the saw; that this was a probable result in sawing a short board unless the spreader was used; that the danger was understood by the defendant’s foreman who, as to the plaintiff, in this matter represented the defendant; that the plaintiff was ignorant of the particular danger; that the defendant’s foreman should be taken to have known this fact; and that no warning of such danger, or instruction as to avoiding it, was given. While the evidence as to instructions and the necessity for their being given was conflicting, there being evidence, if believed, that would support a cause of action under this count of the declaration, it was for the jury to say what the facts were. By their verdict they have found these issues for the plaintiff. The court could not say, as matter of law, that, he must have known or ought to have known the particular danger which he encountered.
Wheeler v. Wason Mfg. Co., 135 Mass. 294 and Jarvis v. Coes Wrench Co., 177 Mass. 170, 58 N. E. 587, are much in point and merit special attention. In both cases the negligence charged was failure to caution and instruct the servant. In both the injury- was caused by the wood which the servant was
To the same effect is Hanson v. Ludlow Mfg. Co., 162 Mass. 187, 38 N. E. 363, and L’Hote v. Lumber Co., 203 Mass. 294, 89 N. E. 532.
It was urged as a further ground of the motion for a directed verdict that the plaintiff on the evidence as a matter of law, assumed the risk and so was barred of a recovery. Counsel do not disagree as to the rules of law applicable to the doctrine of assumption of risk. No branch of the law has been oftener reviewed by this Court in recent years and the law of the subject has long since ceased to be an open question. The difficulty has been, and doubtless will continue to be, in the application of these rules to the facts of the particular case. Herein lies such difficulty as there is on the question here, which is unusual in that under the count now being considered the risk complained of was inherent in the employment and the negligence was failure to warn and instruct with reference thereto. The important and, in the circumstances, controlling question is whether the doctrine of assumption of risk has any application to such
When dealing with so called extraordinary risks a different situation is presented. When the negligence of the master is made to appear, then the doctrine of assumption of risk as a bar to the recovery comes into operation. If the servant, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is precluded from a recovery for an injury that results therefrom. By thus encountering the risk he is regarded as having excused the resulting injury under the maxim volenti non fit injuria,. It is sometimes said that the master no longer owes him any duty, or that the increased or unusual danger becomes an incident of the service. It seems more logical to say that, while the master is not relieved of the duty owed the servant, it becomes one of imperfect obligation which is not recognized in law, following the interpretation of the maxim: “That to which a person assents is not esteemed in law an injury.” See Fitzgerald v. Conn. River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537. While the result is the same the latter view does not regard the servant’s voluntary assumption of the risk as excusing the duty, which has already attached, but leaves it
The risk that occasioned the plaintiff’s injury, if incurred by one not entitled to caution and instruction, would be an ordinary risk of the service and so would be incurred as an incident thereof. Does the fact that the plaintiff was entitled to warning and instruction as to this risk change the character of the danger? If so, is there room for application of the doctrine of assumption of risk where the negligence claimed to be barred thereby consists in failure to warn and instruct concerning the very danger said to be assumed? If we regard the character of the danger as unchanged, the fact that it was an inherent hazard of the employment would not affect the plaintiff’s right of recovery. When he entered upon the employment beset as it-was with a latent danger inherent in the service, under circumstances that cast upon the defendant the duty to warn and instruct him with reference thereto, he did not in law, voluntarily undertake the risks of such danger. The nature of the danger and his ignorance of it make this impossible. If an ordinary danger, it was not incurred as an incident of the employment, because it was not obvious.
On the other hand, if we regard the danger in such circumstances as extraordinary, the presence of negligence on the’part of the defendant in failing to warn and instruct the plaintiff excludes the idea of voluntary assumption of risk; for the knowledge and comprehension on the part of the plaintiff that would afford a basis for assumption of risk would, at the same time, excuse the defendant from its duty to warn and instruct. It is the absence of knowledge on the part of the servant that raises the duty on the part of the master.
It follows that the defendant was not in any view of the evidence, entitled .to a peremptory instruction on the question
It remains to consider the last ground of the motion which raises the question of contributory negligence on the part of the plaintiff. We think it cannot be said that there was no evidence fairly and reasonably tending to show that the plaintiff was exercising due care for his own safety. Contributory negligence as a defence only applies when actionable negligence on the part of the defendant has otherwise been established. Like voluntary assumption of risk it bars the action, but for entirely different, and well understood reasons. We must consider the question as it would stand with the defendant’s negligence established.
A circular saw is everywhere recognized as one of the most dangerous machines in common use. At its best, it requires skill and experience to operate it with entire safety. It is obvious that placing the hands near a rapidly revolving saw is attended with some danger, but the operation of the saw makes it necessary to incur the dangers incident to its operation. Among these is the danger that the board may fly up without the fault of anyone. The plaintiff was not bound to protect himself from unknown concealed dangers. Boyce v. Johnson, 72 N. H. 41, 54 Atl. 707. Whether it was an act of imprudence for the plaintiff to use his hand as he did to guide the board would depend -upon all the surrounding circumstances. He was ignorant that the board he was sawing might “buck” without any fault of his; he was unaware of the object of the guard attached to the saw; -he was unacquainted with a certain safer method of managing the board to prevent its flying up, all through the negligence of the defendant. ■ The evidence was conflicting as to what would be ordinary prudence in managing such a board as he was sawing. The defendant’s foreman had testified without objection that, if the guard or spreader was not used, it was the safest way for the operator to do just as the plaintiff testified he’ was doing at the time of his injury; while another witness testified that the operator should never let his hand go past the front edge of the saw. In the circumstances it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence. The question was one about which reasonable men might differ and so must go to the jury.
Exceptions were taken to several statements made by plaintiff’s counsel in the closing argument to the jury: (1) Counsel asked the jury in substance if they had noticed how many more law firms it took in this case to look after the rights of a corporation than to look after the rights of a boy. While this argument was not in good taste, we fail to see how the defendant could have been seriously prejudiced. The situation is very much like that in Marshall v. Dalton Paper Mills, 82 Vt. 489, 503, 74 Atl. 108, 24 L. R. A. (N. S.) 128. The statement involved nothing not already observable by the jury. The court in allowing the exception remarked: “What consequence is it whether few or many lawyers are engaged in a controversy? The question for the jury is the truth of it, that is ¿11 there is to it.” Counsel facetiously added that he was trying to use the language that one of defendant’s attorneys, naming him, used in the case of Marshall v. Dalton Paper Co. so as to get what he said grammatically correct, and concluded, “If they don’t want me to use their language, gentlemen of the jury, I will withdraw it.” We think the court’s rebuke and the subsequent withdrawal cured any possible harm to the defendant. (2) Counsel said “Albert Carleton had worked around that saw but a few minutes, — I will leave it to you,— a few seconds a day for three weeks,” which was objected to because “ Carleton’s own testimony was that he had worked about fifteen minutes a day.” This could not possibly have harmed the defendant. The statement left the question of time to the jury. The objection brought to the attention of the jury how the plaintiff had testified on that subject. There was nothing in the argument calculated to mislead them in arriving at
(6) After arguing that the marks on the guard or spreader showed that it was raised and lowered frequently, whereas witness Corfield had testified that it was not raised more than once a month, plaintiff’s counsel continued: “Ah, they have got into a bad box. The marks on that machine stamp Mr. Corfield’s testimony as absolutely false. And what do they do? My good man Noyes comes to the rescue.” Then follows reference to Noyes’ testimony tending to account for the marks. Defendant objected, saying: “He says Brother Noyes came to the rescue. We didn’t put anyone on to come to the rescue. My brother himself asked Mr. Noyes whatever questions were asked about this and elicited what information was elicited for his own benefit and not for ours.” The argument did not in terms impute any wrong to the defendant. If anyone was charged with making evidence, it was the witness himself. The jury were aware how the testimony came in and their recollection was refreshed by the objection. Standing thus it is fair to assume that the defendant was not prejudiced by any inference of wrongdoing. The jury had had an opportunity to form a judgment ‘ as to the witness ’ credibility; and, if they thought he was being unjustly criticized, the argument would hai’m the
Numerous exceptions were taken to the charge of the court. Exceptions numbered 12, 14, 17, 19 and 20, related to questions arising under the second count of the declaration. As we have already indicated in speaking of the exception to the action of the court in permitting the plaintiff to go to the jury on the second count, these questions become immaterial in view of the special verdict establishing negligence under the first count. Error, if any should be found in relation to matters peculiar to the second count, would be harmless and so not reversible. The defendant excepted to the charge of the court that general instruction that plaintiff must look out and not get his fingers cut was insufficient, on the ground that, as applied to this case, that was all the instruction that was required. This question has been sufficiently considered in the discussion of the motion for a directed verdict. The exception cannot be sustained.
The defendant excepted “to the charge of the court because the fact that a stick would bind and fly up is a risk ordinarily incident to the operation of that sawing machine, and was assumed by the plaintiff, and there was no question to be submitted to the jury on that.” This question is also disposed of in connection with the motion for a directed verdict. Besides it is an exception 'to the whole charge and for that reason is too general to be considered. Graves v. Town of Waitsfield, 81 Vt. 84, 94, 69 Atl. 137.
The defendant also excepted to the charge of the court in submitting to the jury to find whether plaintiff was injured by any unusual and extraordinary risk, because there was no evidence in the case tending to show that he was injured by any unusual or extraordinary risk. The exception does not indicate and defendant does not point out in his brief wherein the court submitted such a question to the jury. In their brief defendant’s counsel say the ground of this exception is the same as that of the last preceding exception. That being so it follows that it should be disposed of in the same manner.
The defendant further excepted to the charge “because it does not contain instructions to the jury that the plaintiff is assumed to know that he mtust not put his hands in a position where they would be likely to get onto the saw.” In their brief all the defendant’s counsel say concernng this exception
Defendant’s last exception was “to the charge of the court because there was no evidence in the case tending to show that the defendant didn’t know at the time he was injured, at the time and before he was injured, that a stick was liable to fly up.” The exception is to the whole charge; and neither below nor here is there any attempt to point out the particular portion of the charge complained of. All that is said in defendant’s brief concerning this exception is that it is based on the same ground as defendant’s motion to direct a verdict, to which we are referred. Waiving these objections, either of which would be fatal to the exception, the exception cannot be sustained on its merits. We need only to restate what has been said concerning the matter in disposing of the motion for a directed verdict. The plaintiff testified that he had never used a circular saw before; that he knew nothing about it; that he didn’t receive any instructions from anyone with reference to the use of the saw; that he was merely told to be careful and not cut his fingers; that no board had ever before jumped the way this one did that he was sawing at the time of the injury. This evidence fairly tended to show that the plaintiff didn’t know that the board was liable to fly up.
We have considered all of defendant’s exceptions not specially waived or not waived by failure to' brief.
Judgment affirmed.