Coombs v. New Bedford Cordage Co.

| Mass. | Oct 15, 1869

Gray, J.

The rulings and instructions at the second trial of this case appear to us to have been in strict conformity with the law, and with the former opinion of the full court.

In that opinion, the general principles were fully recognized and asserted, that any person who allows a dangerous place to exist on his premises is responsible for an injury caused thereby to any other person who enters on the premises by his invitation or procurement, in the use of due care and without notice of the danger; that an employer is under an implied contract with his servant to find suitable instruments and means of carrying on the business, and a suitable place in which the servant, himself exercising due care, may perform his duty without exposure to dangers not coming within the obvious scope of his employment; and that-the implied contract to have the machinery in such a safe and proper condition as not to expose the servant to unnecessary risk is the foundation of the master’s liability.

In applying these principles to the present case, it was said that “ if the plaintiff, being of sufficient age and intelligence to understand the nature of the risk to which he was exposed, and with full notice of the dangerous nature of the service which he undertook, choose to contract to do it,” he assumed all such risks as were clearly within the scope of his employment, and no implied contract could arise on the part of the master to indemnify him against the consequences of such risks; and “ that if, by the fact that the cogs were in sight, and the danger from them apparent, the jury should be satisfied that the plaintiff had reasonable notice of the peril to which he was exposed, and, understanding it, chose to undertake the employment which exposed him to it, he cannot recover; but that if, on the other hand, they should be satisfied that the defendants knew or had reason to know the peril to which he would be exposed, and did not give him any sufficient or reasonable notice of it, and if he, without any negligence on his own part, from inexperience, or reliance upon the directions given him, failed to perceive or appreciate the risk, and was injured in consequence, they would be responsible to him in this action.” And the question of the defendants’ negligence in this respect was ordered to be sub mitted to the jury.

The notice which the defendants were bound to give the plaintiff of the nature of the risks incident to the service which he undertook must be such as to enable a person of his youth and inexperience in the business intelligently to appreciate the nature of the danger attending its performance. The question indeed on this branch of the case is not of due care on the part of the plaintiff, but whether the cause of the injury was one of which he knowingly assumed the risk, or one of which, by reason of his incapacity to understand and appreciate its dangerous character, or the neglect of the defendants to take due precautions to effectually inform him thereof, the defendants were bound to indemnify him against the consequences. But in determining this question, it is proper and necessary to take into consideration* not only the plaintiff’s youth and inexperience, but also the nature of the service which he was to perform, and the degree to which his attention, while at work, would need to be devoted to its performance. The obligation of the defendants would not necessarily be discharged by merely informing the boy that the employment itself, or a particular place or machine in the building or room in which he was set to work, was dangerous. Mere information in advance that the service generally, or a particular thing connected with it, was dangerous, might give him no adequate notice or understanding of the kind and degree of the danger which would necessarily attend the actual performance of his work.

The instructions given were carefully framed, and well adapted to impress the true distinctions upon the minds of the jury. The jury were expressly told that the question was not whether the place was more dangerous than was necessary, or than is usual in similar establishments, nor whether it might have been made more safe by reasonable care ; that the only ground on which the plaintiff could recover was, that because of his youth,. inexperience and want of capacity to appreciate and avoid the danger, it was the duty of the defendants to take especial precautions for his protection, which they had failed to do ; and that, if he was manifestly incapable of understanding and appreciating the danger to which he was exposed by the gearings, or manifestly incapable of performing with safety the work at the place where he was put to do it, there might be a breach of duty on the part of the defendants in placing him in a position where he could be so exposed, or placing him there without giving him such instruction as would enable him, with reasonable care and attention.on his part, to do his work there safely.

The plaintiff had introduced evidence tending to show that at the time of the injury he was less than fourteen years old and had been in the defendants’ service but a single day; that .he knew nothing about machinery, and had never been in a similar employment before; that his work consisted in filling cans with strands of hemp, poured out in a continuous stream from a drawing machine, which required his constant attention, in a room containing many such machines, and in which the noise was two or three times as loud as in the railroad cars; that he had to see that the strands went into the can, press them down and fill the can, and then break off the strand and remove the can to the place where it was required for the next process, and set another can under the machine for the repetition of the operation; and that he had been instructed, and in the condition of the work at his machine at the time it was necessary, to break off the strand by taking it in both hands and separating the fibres by drawing it apart between the hands, which, as was said by Mr. Justice Hoar in delivering the former opinion, “ would naturally occasion him to extend his arms and hands in such a manner as to bring his fingers very near to the cogs” of another drawing machine, also in full operation, in plain view indeed, but without any guard, and by the side and somewhat in the rear of the place in which the plaintiff would properly stand in tending his machine — thus producing a danger which had not existed in the place where he had worked on the single previous day of his employment in the defendants’ service, and which, as he testified, no one had pointed out to him or cautioned him in regard to; and that, while standing in his proper place, tending and watching his machine, and in breaking off the strand with both hands after filling the second can, his left hand was caught in the cogs of the next' machine and badly injured.

This evidence, if believed by the jury, warranted them in finding, in the words of the instructions given, that “ he was manifestly incapable of understanding and appreciating the danger to which he was exposed by the gearings, or manifestly in capable of performing the work there with safety,” and that, “ taking the machines as they were, in the places they were in, the defendants were guilty of negligence in setting the boy to work in that place without proper and reasonable precautions that he should be so informed a «id instructed, in regard to ais work there, and the danger to which he would be exposed, as to enable him, with proper attention and care on his part, to avoid that danger.”

The duty of providing suitable machinery to carry on their business, and a suitable place for the plaintiff to work in, including giving him full notice of the nature of the risks attending the service, was a responsibility resting upon the defendants, • which they could not throw off by delegating it to a foreman or to other workmen. Gilman v. Eastern Railroad Co. 13 Allen, 433, 441. Smith on Master & Servant (3d ed.) 212. In Grizzle v. Frost, 3 Fost. & Finl. 622, a girl under sixteen years of age, who had never been in such employment before, entered into an employment precisely like that of the present plaintiff. She testified that she received no particular instructions; that, a few days after she entered into the employment, the defendants’ foreman, observing that some of the hemp dropped from the machine, told her to pick it up and put it between the rollers without having them stopped, in a manner which he showed her, and which made it necessary to bring the fingers very close to che rollers, which was admitted to be very dangerous; and that two or three days afterwards, while doing exactly as she had been directed, her fingers were caught by the revolving rollers. Chief Justice Coekburn instructed the jury, that, “ if the owners of dangerous machinery by their foreman employ a young person about it quite inexperienced in its use, either without proper directions as to its use, or with directions which are improper and which are likely to lead to danger, of which the young person is not aware, and of which they are aware; as it is their duty to take reasonable care to avert such danger, they are responsible for any injury which may ensue from the use of such machinery.”

Upon the question of due care on the part of the plaintiff, the state of facts which the evidence introduced by him at the second trial tended to show made quite as favorable a case for him as that which was held upon the first argument proper to be submitted to the jury. The case is within the same principle as Hackett v. Middlesex Manufacturing Co. 101 Mass. 101" court="Mass." date_filed="1869-01-15" href="https://app.midpage.ai/document/hackett-v-middlesex-manufacturing-co-6415609?utm_source=webapp" opinion_id="6415609">101 Mass. 101, 104, in which this court said: “ It can hardly be expected that workmen will not move a little while they are engaged about their work; and if they are exposed to danger from defective machinery, of which they are unaware, the question is, whether they were in a position such as, without carelessness, they might be reasonably and naturally expected to occupy, and not improper for a person so employed. This is a question of fact, under all the circumstances of the case, and not of law.” In determining whether there was sufficient evidence upon this question to be submitted to the jury, it is hardly necessary to observe that the conflicting testimony introduced by the defendants cannot be taken into consideration.

The refusal of the presiding judge to give the instruction requested affords no ground for granting a new trial; because he was not bound, when the testimony was conflicting, to give an instruction based upon an assumption of the credibility of particular witnesses-; and because the subject of the request was fully and accurately covered by the instructions given. Bailey v. Bailey, 97 Mass. 373" court="Mass." date_filed="1867-10-15" href="https://app.midpage.ai/document/bailey-v-bailey-6415071?utm_source=webapp" opinion_id="6415071">97 Mass. 373. Laber v. Cooper, 7 Wallace, 565.

Judgment on the verdict for the plaintiff.