157 Mass. 283 | Mass. | 1892
The plaintiff seeks, at common law, to recover for an injury received while in the defendant’s employ. His hand was crushed between the rolls of a lap-winder, then in use for doubling laps. The machine had a long platform about two and a half feet wide, on which ran a layer of carded cotton of about the same width, passing between two iron rolls
At the time of the injury the plaintiff was fourteen years of age, and at the time of the trial nineteen. He was himself a witness. There was some evidence, which read in the bill of exceptions seems slight, but the weight of which, it having been admitted, was for the jury, (see Ciriack v. Merchants’ Woolen Co. 151 Mass. 152, Leistritz v. American Zylonite Co. 154 Mass. 382, 384, and Connors v. Grilley, 155 Mass. 575,) that he was not very smart, and was rather dull. He had never worked in a mill before his employment by the defendant, which was about three weeks before his injury, and before his employment he knew nothing of such work. He was not hired to work upon the lap-winder, but it was in his sight when at his work. The evidence tended to show that he was hired to mind the cards, mend broken ends, keep the cards clean, and the floor clean around four sections; and that he was told by the overseer to attend to that work, and not to attend to any other. There was no dispute that he received sufficient instructions as to the work which he was hired to do. He himself testified that the lap-winder was at the end of the cards, and that he noticed it when he was at work upon the cards, and how it operated, and what it did, and knew about the laps running along and running between the rolls, and that the end of the lap which was put into the standards would roll down until it came in contact with the one on the platform, and that they then went together between the rolls.
The circumstances attending the injury were in dispute, and the evidence was conflicting. It was in dispute whether James McKeon, who called the plaintiff to come to the lap-winder and help, was then the second hand of the room, or was merely a card-grinder, and so a common laborer. The plaintiff testified that the lap broke, and that James McKeon told him to piece it up, and that while he was doing so his hand was caught; while McKeon testified that there was no breaking of the lap, and no order to piece it up. The plaintiff testified that James McKeon gave him no instructions; while McKeon testified that, when the plaintiff put the lap down in the standard, he told him, “Now keep away from the rolls, keep your hands away from those
The evidence tended to show that James McKeon was doubling laps, and that, the other card-grinder being absent, he called the tender of the lap-winder to help him in putting a lap in the standards. This man not coming, McKeon called the plaintiff to come over and help him. The plaintiff was at work at the cards, and did not comply. McKeon called him a second time, and he remained at his own work; McKeon then, with an oath, called him a third time; whereupon the plaintiff left his work and went to help McKeon. McKeon, standing with the rolled lap on one side of the lap-winder, and the plaintiff opposite on the other side, passed to him one end of the rolled lap, directing him to put the end of a stick passing through it into the slot in the standard, and the plaintiff did so. The plaintiff testified that, after the lap had been so placed, he saw it run off, and that then McKeon passed him another lap, and that his end of this lap fell and broke, and that McKeon directed him to piece it, in attempting to do which his hand was caught by the rolls. McKeon testified that he remembered the placing of but one lap with the plaintiff’s help, and, as above stated, denied that the lap fell or broke, and that he ordered the plaintiff to piece it.
1. It is plain that a verdict for the defendant could not have been ordered on the ground that the plaintiff was improperly at the lap-winder. There was evidence for the jury that James
2. Whether a verdict for the defendant ought to have been ordered on the ground that the plaintiff, in placing his hand in a position to be caught between the rolls, incurred without necessity a known and obvious danger, which he must be held to have had the means and capacity of appreciating, and so was injured by his own carelessness, is a difficult question. Persons of his age and of ordinary understanding, who have for three weeks been familiar with the operation of such machinery as that upon which the plaintiff was employed, must be taken to know that the hand will be injured if allowed to come between revolving wheels, such as the plaintiff had seen in operation upon the lap-winder, and by which he was hurt. Henry v. King Philip Mills, 155 Mass. 361. De Souza v. Stafford Mills, 155 Mass. 476. Rood v. Lawrence Manuf. Co. 155 Mass. 590, and cases cited. The defendant contends that numerous cases in which a similar doctrine has been applied by this court govern the case at bar. In Moulton v. Gage, 138 Mass. 390, the dangers were of a different class, but the fact that they were obvious was held to authorize a verdict for the defendant, the plaintiff being a man of the age of twenty-five years, and of ordinary physical and mental capacity. In Crowley v. Pacific Mills, 148 Mass. 228, the plaintiff was about seventeen years old, and had been employed in mills for five years, and it wasy held that he could not recover for an injury sustained in consequence of putting his finger between a roll and a cylinder, each of which was revolving, the roll serving to hold against the cylinder a piece of cloth, from which he was smoothing a wrinkle. In Probert v. Phipps, 149 Mass. 258, the plaintiff was a boy of fifteen, as to whose capacity the case is silent. He was hurt
3. The defendant requested three rulings upon the question whether the plaintiff was at the lap-winder under such circumstances as to render the defendant liable for an injury resulting therefrom. Of these, the third could not be properly given, because, as we have seen, there was evidence that James McKeon was second hand, and in authority over the plaintiff. The presiding justice was not bound to give the first and second in
For some purposes the overseer of the room was the representative of the defendant, and could in that room confer authority both directly and indirectly.. If he knowingly acquiesced in the giving of orders by James McKeon to other workmen, that was tantamount to conferring upon him authority so to do; and so would be his imposing upon James McKeon of work which it was impossible for him to do without help, and allowing him to obtain assistance as he chose. James McKeon was doing the defendant’s work in the ordinary manner, and in good faith took an obvious and natural means of forwarding the master’s work in calling the plaintiff to help him. If the plaintiff complied with the order, the defendant would stand to him in the relation of a master, although James McKeon might have acted negligently in calling upon him, and might not have made a wise selection, or have done what the overseer or the defendant intended. The usual doctrines of agency would govern the case, and the jury were properly so instructed.
The instructions with reference to the starting of the machine after the plaintiff’s hand was caught were sufficiently favorable to the defendant.
Exceptions overruled.
The instructions were as follows: “ I do not know that there is any evidence in the case that the overseer did by words appoint James McICeon second hand, or by words clothe him with any authority other than that of an ordinary servant or laborer. The second way in which James McICeon might get this authority would be from being allowed to exercise it in the mill, and in the presence and with the knowledge of the overseer. I assume, for the purposes of this case, and believe it to be the law, that upon such a matter the overseer had the power, according to the evidence without dispute, to clothe James McKeon with this authority, if he distinctly and specifically desired to do so, by appointment. He would also have power to invest him with authority indirectly; that is, by allowing him to exercise it, knowing that he exercised it, and making no objection. Upon such a matter as that, by virtue of his position, he would represent the defendant corporation, and, under the law, they might clothe him with authority by allowing him to use it with their knowledge, without objection from themselves, or from the overseer representing them. . . . Bearing in mind that the burden of proof is upon the plaintiff, taking all the evidence of the plaintiff, has the plaintiff satisfied you by a fair weight of the evidence that James McKeon at and before the time of this injury was in the exercise of this power and control over the plaintiff and other servants, and that it was known and acquiesced in by the overseer ? If he was, then you would be warranted in finding that he had this authority with reference to calling upon the boy. ... If James McKeon had the right, by virtue of the business he was set to do, to call men to his assistance, and, in the honest prosecution of the work that had been assigned him, and with an honest intention to carry it out, called upon the plaintiff to assist him, although he had not judged wisely in doing so, although he may not have done exactly what the defendant intended him to do, yet if he was acting in good faith, intending to carry out and perform a duty which had been assigned him, and he did what he did in the honest exercise of his judgment, and so called upon the plaintiff, and the plaintiff in obedience to that call, went to his assistance, it must be taken for the purposes of this case that the defendant would be responsible for that call. ... If his authority is shown by a fair weight of the evidence in either of these two ways I have spoken of, and if the plaintiff went to that machine in response to his call then it is to be taken at this point that the plaintiff was properly at the machine, and unless you are satisfied of James McICeon’s authority in one of these two ways to which I have referred, and that the plaintiff went in response to his call, then the defendant is not responsible to the plaintiff for his being at the lap machine, and is not responsible for the injury that he suffered.”
The instructions were as follows: “ There has been some evidence tending to show that after this boy’s hand got caught, and got injured to some extent, the machine was stopped, and then that a fellow laborer, hearing the outcry, did something to the machine which, instead of stopping it, started it up again, and the boy’s hand was drawn farther in and injured further. Now the question is, What responsibility would the defendant have with reference to that ? If the defendant is liable at all, my view of that is this : that if what this servant did he did in the way of prosecuting his work as a servant, however careless it might be, it would be the carelessness of a fellow • servant, and the defendant would not be responsible for it. If, on the contrary, what he did he did because he heard this cry of distress, and not with reference to his ordinary labors as a servant, but for the purpose of relieving the plaintiff, whom he supposed was being hurt, and did it with that intention and for that purpose, although his action was a careless action, as it turned out, I think the defendant may be responsible for that, if the defendant is responsible in the case.”