| Mass. | Jan 2, 1905
The accident to the plaintiff happened from his putting his fingers in contact with a cog wheel, as he was moving a fork through which a belt ran, in order to throw off the belt. As the machine was constructed, there was a wooden box which covered the gearing in which his fingers were caught, but this box had been off for a considerable time before the accident. Its absence increased the danger to persons working about the machine, qnd the jury might have found that the defendant was negligent in leaving it off.
Another question is whether there was evidence that the plaintiff was in the exercise of due care. There was abundant evidence that he was in the performance of his duty, doing that which frequently was done by operators in running such machines, and which would have been perfectly safe if the box had been in its place. He testified that he supposed the box was there until his fingers were caught, and, if this part of his testimony is true, there is nothing to show that he was negligent,
The machines which he was tending were spinning frames, five in number, each frame being made up of two machines. They were set in a row, near together, with a narrow passage between them and the wall of the building, and with narrow passages between every two adjacent frames. The plaintiff was set to work to take the place of a man who was temporarily absent, and he had no reason to suppose that there was any frame without its box to cover the gearing. He had been at work on these machines only about three quarters of an hour when the accident happened. During this time he had been engaged in mending threads which broke upon some of the machines. It certainly cannot be said, as matter of law, that he was negligent in failing to discover the absence of the box from one of the frames, before he started to change the belt. It would be a mere chance if he discovered the defect while working as he was, in the short time before the accident.
Nor can we say, as he described the accident, that he was necessarily careless in taking hold of the fork to change the belt, without looking particularly enough to notice that the box was gone. We are of opinion that the evidence was rightly submitted to the jury.
If the questions objected to had been put to the witnesses as experts, they well might have been excluded, as the subject to which they relate is not a matter for expert testimony. But we do not understand that they were put for the purpose of introducing opinions as such. We suppose the questions were asked as a simple and convenient mode of obtaining a description of the machine, in reference to the parts which were important for the consideration of the jury. We are of opinion that the evidence was competent.
Exceptions overruled.