Connors v. Grilley

155 Mass. 575 | Mass. | 1892

Allen, J.

We do not see that the judge would have been warranted in withdrawing the case from the jury.

Looking only at the testimony in support of the plaintiff’s claim, it might be found that she was in the exercise of due care. According to testimony which the jury might believe,'she was seventeen years old, inexperienced, having worked on a skiving machine only one afternoon before the day when she got hurt. The defendant set her at work upon the machine without instructions. She undertook to do as Miss Simmons had done. There was a rule that if leather got caught Heckman should be called. It did get stuck, and she called him, and he came and relieved the machine. A few minutes afterwards it got stuck again, and she called him, and he came and relieved the machine, and swore at her, and told her, “ If this machine gets stuck again, fix it yourself.” This was within the defendant’s hearing. She was going to ask a few questions of the defendant, but he shook his head and hands, and refused to listen, and said, “ No, no, no; if you do not work fast, I will send you home.” So he frightened her and she worked faster, and when the machine got stuck again she tried to relieve it as she had seen Miss Simmons and Heckman do, and her hand got caught. It was not very unusual for the machine to get stopped by leather catching in it.

This testimony was contradicted in some respects, but in some important particulars it was confirmed. Contradictions are not for us; the jury may have believed the testimony most favorable to the plaintiff. Glover v. Dwight Manuf. Co. 148 Mass. 22.

The jury might’ also find the defendant negligent in setting her at work upon the machine without more full instructions. As to her need of instructions, the defendant and Heckman both testified that she was slow in her work as compared with the other girls. Heckman had sworn at her, and the defendant had taken her to task, saying if she did not work fast he should send her home. Her cross-examination before the jury was long, and might materially aid them in judging of her capacity. Two of her former school teachers testified, in substance, that she was a very dull girl. The jury might find that she stood in need of special instruction as to the danger of the machine, and that the defendant was or ought to have been aware of it. The admission of questions for the purpose of showing the general capacity and intelligence of a plaintiff may depend on circumstances which can best be determined by the judge who presides at the trial. In Leistritz v. American Zylonite Co. 154 Mass. 382, such questions were excluded, under the peculiar circumstances of that case, and we held that such exclusion was no sufficient ground for a new trial. In the present case the questions were allowed, and we think the allowance of them was not erroneous. The plaintiff had been cross-examined at great length before the jury, and there was an open intimation that she was feigning ignorance or dulness. In connection with her appearance and testimony, her age and inexperience, the admission of evidence that her teachers had found her an unusually dull girl was within the discretion of the presiding judge. See Keith v. New Haven & Northampton Co. 140 Mass. 175 ; Peaslee v. Fitchburg Railroad, 152 Mass. 155.

The omission to give the latter part of the fifth instruction requested was' right. Judgment on the verdict.