74 F. 608 | 2d Cir. | 1896
The plaintiff, a boy of 18, went into th« employ of defendant, a manufacturer of crackers and biscuits, in May, 1892. Until the following July, except for a few weeks, when he was sick, he was employed in helping the baker at the oven. Thereafter, for a few7 days, he was set to work “pulling scrap.” So far as appears, neither of these occupations was dangerous. Thereafter the foreman (old him to take the dough, and break it on a machine known as the “dough-breaker.” Plaintiff testified that in response to such direction “I told him that I never done it before; I don’t know how to do it; and he left me and went away.” When plaintiff returned the following day, he was told there was no work for him at that time, and to come around the next day. He did that for several days, and finally, on July 20th, was re-employed, first at sweeping, and afterwards at pulling scrap, and then about 1 o’clock the foreman told him to “take the dough and break it up; take it over to the break machine and break it up.” Influenced, possibly, by the recollection of the cessation of employment which followed his former refusal, plaintiff took a mass of dough in Ms hands, pul it on the break machine once, and' let it go through, and it came out in three slices, and, as it had to come out in one piece, he took the dough again, and pressed it down with his right hand, using his left hand to catch hold of it as it came out between the rollers. The fingers of Ms right hand got caught between the rollers, and Ms hand was crushed, which necessitated amputation. The dough-breaker consists of a trough placed on an incline above two rollers of about 10 inches diameter. The dough is placed in this trough, and pressed
The remaining assignments of error may be briefly disposed of. At the close of the charge defendant’s counsel excepted “to so much of the charge that states, in effect, that if the plaintiff was at work at this machine without instructions, defendant was guilty of negligence.” To this the court replied: “I did not charge that. If I did charge it, I will retract it now.” Thereupon defendant excepted “to so much of the charge as states, in effect, that if the plaintiff was directed to operate the machine without instructions, or without adequate instructions, the defendant was negligent.”
The next exception is to so much of the charge as “charges, in effect, that it is improbable that plaintiff thought that he could operate the machine without danger of losing his right hand.” Careful examination of the charge fails to disclose any sentence which conveys any such instruction. The excerpt in the brief purporting to be taken from the charge is not an accurate transcription, and (he paragraph from whieh it is evidently derived leaves it to the jury to determine whether it was probable that plaintiff wrould undertake to operate the macldne if he had known he could not operate it safely without instructions, which is quite a different proposition from that stated in the exception. We find no error in the admission of evidence given by the witness Russell, an experienced operator on the dough-breaker machine, lie was asked, “Is that a dangerous machine?” — a question which was properly excluded, the court allowing him to describe what dan
The judgment of the circuit court is affirmed.