212 F. 652 | 1st Cir. | 1914
The facts of this case so far as they are not in dispute, and, beyond that, so far as, for the purposes of this
“This is an action brought by Mary J. Tibbetts, administratrix of the estate of Frank Tibbetts, against the Odell Manufacturing Company, to recover damages for causing the death of deceased on the 5th day of October, 1911. There was a trial, resulting in a verdict for the plaintiff for $5,250.
“The Odell Manufacturing Company owns and operates a paper mill. In its mill is what is known as a screen room, which is separated into two parts; one part containing screens and the other digesters. The portion of the room containing the digesters is separated from the screen room proper by a plank dam, so called, in the testimony, rising eight inches above the floor. Around and under the screens the floor is always wet. More or less water and stock (wet pulp) spatters from the screens.
“The screens are in tlj.e form of large boxes standing on raised metal frames. Motion is transmitted to them by means of a shaft' and knocker blocks underneath the boxes. Tower is applied by a quarter-turn belt running from an overhead shaft and pulley to a pulley on the screen shaft, which shaft is located under the screen boxes. The latter pulley is 22% inches from the frame of the screen. The width of the rim of the pulley is about 9 inches, and the belt about 7% inches. The bearing of the screen shaft is between the pulley and the frame of the screen about 5 or 6 inches inside of the inner side of the rim of the pulley. The dam between the screen room and the digester room is 5 feet and 2 inches from the outer rim of the pulley. The diameter of the pulley is 22 inches, and the rim is raised 4 inches above the floor. The screen near which the accident occurred was a corner screen in the screen room proper, and there is a walk between it and the south wall of the room. There are windows in the room at that point, so that the light is ‘first-class.’ There wás more or less water and stock on the floor between the dam and the pulley at the time of the accident.
“To pass from the digester room between the screen and the wall a person would step over the dam in front of the screen and turn to the right, then again a little to the left, and straight ahead. In going- through this walk one would pass the pulley first, then between the frame of the screen and the wall. The pulley revolved toward the wall.
“Tibbetts, the deceased, was a man 59 years of age, and had worked for the Odell Manufacturing Company in the screen room about 12 years. At the time of his death he was a screen repairer. His duties were to oil the screens, make minor repairs on them, such as could be made by one man, and keep the floor picked up and cleaned. If there was any small job of repairing to do in the room it was his duty to look after it.
“The accident happened about 4:30 p. m. on October 5, 1911. In the southwest corner of that portion of the room occupied by the digesters is a toilet. Just prior to the accident one Silsby was occupied painting the toilet, and one Patrick- happened along there. While the two men were talking, Tibbetts, the deceased, came along with his oil can in his hand. The three talked a few minutes, when the men separated. Tibbetts started toward the screen driven by the pulley. This pulley was about 30 feet distant from the toilet' room and in plain view. In going to his work from near the toilet room Tibbetts walked straight towards the pulley. He could not help seeing it all the time. In a minute or a minute and a half, Silsby heard a noise like something hitting the floor. When he went out he found Tibbetts lying on the floor on his left side, his feet toward the wall, and head toward a pump which is to the right of the pulley as he approached it. tie was lying between the dam and pulley. His left arm and nock were broken. He was unconscious, and died within a few moments.”
Aside from the above, there are no facts on which we can base a theory how the accident occurred.
It is not disputed that the mill was constructed with a guard so far protecting the pulley that, if it had been in place, the accident involved here would not have happened. It was out of place; and it had entire
It is also apparent that, on the face of the case, it was to a certain extent the duty of the deceased to restore the guard; but it is not shown that it was his duty to replace it if it had entirely disappeared. It is, however, also evident that if he had any duty in reference thereto it was suspended by the conversation with Moore, hereinafter referred to.
Aside from what we have referred to, we do not find that there is any question presented in the record which requires our consideration except what arose as follows:
Aside from that, the circumstances affecting the testimony of Moore are in no way of such a conclusive character that an appellate court could set aside the finding of a jury based thereon, even though it might think that if it held the place of the trial judge it would have done so. Therefore we must accept the testimony of Moore as given by him. He said that he heard a conversation, between Tibbetts and Marshall a while before the accident occurred. He does not positively fix the length of the intervening period. “Well,” he says, “it was only just a few days or so.” He had previously said that it was the week before Tibbetts was killed. That was as well as he could locate it; and, in any event, his attempt to locate it was confused, so that it would be impossible for us to determine on this record how long before the accident the conversation occurred.
The conversation he reports as follows:
“Well, Tibbetts said that he should put his coat and hat on and go home if that guard was not put back there; and Dan [meaning Marshall] said: 'You keep your hat on. I will have that guard put right back there.’ ”
As reported by Moore, that was the end of the conversation. This went to the jury, and the jury found that the conversation as reported by Moore was correct. The only thing, further, we have in the record concerning the matter is an extract from the charge of the judge to the jury-on this point, covering two full printed pages, and closing as follows:
“To these instructions the defendant duly and seasonably excepted.”
It is not denied that the portion of the charge excepted to was correct so far as the general rules regarding the effect of the conversation between Marshall and Tibbetts is concerned. The court charged, although not so pointedly as it might have done, that it was for the jury
“If you find that this inducement was held out to him by the company or its agents, and you find it was a reasonable thing for him to go forward there as he did, and he was injured by reason of the defect, then he would be entitled to recover, and there would be no arbitrary rule of law which would hold him to an assumption of the risk.”
Many topics were discussed at the bar; but we think that we have disposed of those which are essential, and, indeed, of all the propositions raised by the assignment of errors which were finally insisted on.
The judgment of the District Court is affirmed, with interest; and the defendant in error recovers her costs of appeal.