218 F. 323 | 3rd Cir. | 1914
The plaintiff below, hereinafter called the plaintiff, received injuries while operating a circular saw -in the works of the defendant below, hereinafter called the defendant, to recover damages for which this action was brought. The testimony tends to show that'the plaintiff was a man of about 23 years of age and was employed as an unskilled workman about the plant of the defendant. He knew from observation something about locomotive machinery, but knew nothing about saws. After being employed by the defendant for a period of 10 days and being theretofore engaged only in work of a.general character, the foreman set the plaintiff to work cutting boards with a circular saw. The saw operated through a slot in a table, extending or protruding above the upper surface of the table about 1% inches. The table was so constructed tha.t its elevation could be adjusted to increase or decrease the exposure of the saw above its surface. Above the table and overhanging the saw was an iron guard, in length equal to the upper arc of the saw and about two inches in-width, and situate about 2% inches above the top of the saw, or from 3 to 31/2 inches above the top of the table. The presence and purpose of this guard was to protect the operator from injury, in conformity with the requirements of the Pennsylvania act of 1905 (P. L- 355), known as the-“Factory Act.”
Before entering upon the work, the foreman gave the plaintiff certain instructions respecting the manner of cutting boards and operat
The injury to the plaintiff occurred in his attempt to remove from the side of the saw the waste strip which had been cut upon the first piece of work that he had attempted after receiving the instructions of the foreman.
The acts of negligence charged to the defendant among others, were:
First, the master’s failure to give its servant proper instructions in operating a machine with which he was unfamiliar and to warn him of its dangers; and
Second, its failure to provide a proper guard, as required by the act of assembly, known as the “Factory Act,” and its failure to instruct him how to use and adjust the same.
The defendant contended that it furnished the plaintiff a sufficient guard in conformity with the statute, and through the foreman gave him sufficient and proper instructions how to operate the machine with safety, the dangers of the same being apparent alike to the plaintiff and the defendant, and that the injuries to the plaintiff were caused by his own negligence.
The jury rendered a verdict for the plaintiff, and the error assigned is the refusal of the trial court to instruct the jury to render a verdict for the defendant.
It is a recognized principle of law that, when a servant is taken by his master from his ordinary employment and put at work that he never before had done, there rests upon the master the duty of instructing the servant with respect to the methods and the dangers of the new kind of work. In Peters v. George, 154 Fed. 634, 639, 83 C. C. A. 408, 413, Judge Gray, speaking for this court, said:
“Xlie master does not insure the safety of the servant, but he does undertake that the place in which he works, and the appliances with which he works, and the conditions under which he works, shall be reasonably safeguarded. * * * It has never been doubted that a master’s duty to an ig*326 •norant or inexperienced workman, indeed to any workman about to undertake more than ordinarily dangerous work, is to explain, its dangerous character and give adequate caution as to its prosecution. This duty is of the absolute personal character above referred to, and is not discharged by merely intrusting its performance to a properly selected subordinate. Nothing short ■of actual notice of the danger to the workman who is to encounter it, with •such cautionary explanation as may enable him to avoid it, will satisfy the •requirement of the law, and the default of the intermediary, whether he be the highest officer in control, or merely a fellow workman of the one exposed •to the danger, is the default of the master.”
The avowed purpose of the statute requiring the use of safety appliances upon dangerous machines is “to provide for the safety of all employés in industrial establishments,” and the requirement that these machines be properly guarded means “effectively guarded in the light of the dangers to be anticipated,” and the failure of the master to comply -with this act constitutes actionable negligence. American Ice Co. v. Porreca, 213 Fed. 185, 129 C. C. A. 529.
It has been the policy of this court to construe this statute broadly, in accord with its purpose to prevent avoidable harm. A proper-guard upon a dangerous machine means not merely the presence of a proper guard upon the machine, but of a guard properly used and adjusted; and instructions which the law requires a master to give an employé un- - familiar with the dangers of a machine upon which he is put to work, when such a machine is required by the Factory Act to be properly
In the conflict of testimony respecting the elevation of the guard over a dangerous part of the machine and its effectiveness as a protection against the dangers of the machine, as well as from the undisputed testimony concerning the conduct of the plaintiff in exposing his hand to injury by placing it under the guard and near the saw, we are of opinion that fair-minded men might reasonably draw different conclusions concerning negligence of the defendant and contributory negligence of the plaintiff, and when such differing conclusions can reasonably be drawn from evidence that is either in conflict or undisputed, questions of negligence remain questions of fact and should not be withdrawn from the jury. Texas & Pacific Ry. Co. v. Harvey, 228 U. S. 319, 324, 33 Sup. Ct. 518, 57 L. Ed. 852. The court below committed no error in submitting these issues to the jury and in refusing to bind the jury to render a verdict for the defendant.
The judgment below is affirmed.