Phillips v. J. H. Lockey Piano Case Co.

| Mass. | Feb 23, 1910

Morton, J.

All of the defendant’s requests except those numbered 9,10 and 11 have been waived by it. Requests 9, 10 and 11 are as follows: “ 9. The mere fact that there was vibration or uneven motion in the machine furnishes no evidence of a defect in the machine. 10. If the machine was repaired by a reputable maker and the repaired part installed on the machine the defendant was justified in using the machine so repaired and was not negligent in so using it. 11. There is no evidence of defect in the machine except as testified to by Rice that no repair had been made on the cracked casting, and unless the jury believe the testimony of Rice the plaintiff cannot recover.” We think that the instructions thus requested were rightly refused.

Whether the vibration or uneven motion, if there was any, could be regarded as evidence of a defect, depended upon what the jury might find as to the nature or extent of it. The jury might have found it to be such that the only reasonable explanatian of it, or at any rate the more reasonable explanation of it, was that it was due to a defect in the machine, in which case the presence of the vibration or uneven motion would have been evidence of a defect in the machine. It would have been error therefore, to have given the ninth instruction requested. ' The fact that the defendant had got a reputable maker to repair the machine was admissible in evidence on the question of the defendant’s due care or negligence in continuing to use the machine. But it could not have been ruled as matter of law that the defendant could not be found to have been negligent in using the machine after it was repaired. The repairs might not have been properly made notwithstanding the work was done by a reputable maker, and the machine might still have continued to be defective and unsafe for use. The tenth request was therefore properly refused.

The eleventh request could not have been given as drawn, since, even if the jury disbelieved Rice, they might still have found that the plaintiff was entitled to recover on the ground that he was directed by the defendant’s foreman to go on with his work after the guard or spring had been removed from the machine, without any warning or instructions being given him as to the danger. The request as drawn asked the presiding judge to instruct the jury, in substance, that the plaintiff could not recover unless they believed, what Rice had testified to, that there had been no repair of the cracked casting, and was plainly too broad.

The remaining exceptions relate to matters of evidence. One Far well was called as an expert by the plaintiff. No objection was made to his qualifications as an expert. On direct examination he was asked: “ Assume that a person is at work operating a buzz planer and planing stock two inches wide and five eighths inches thick, and that said stock when planed appears to be rough and of a washboard effect as testified to, what in your opinion does that indicate to be the matter with the machine, if anything?” and he answered, “It would indicate something was loose about the fastening of the cylinder of the machine.” We think that the question and answer were both plainly competent. One objection urged is, in effect, that the question was not sufficiently comprehensive. But however much that might affect the value of the answer it did not make the question itself incompetent. Another objection is that it called for the opinion of the witness upon the effect of evidence. We do not think so. The words “as testified to” referred simply to what had been previously described in the question as a rough and washboard effect. We think that the subsequent question to the same witness and his answer were also clearly competent. The question was a proper one for an expert, and the answer was responsive.^* The testimony in rebuttal that was objected to was rightly admitted. It tended to contradict the defendant’s witness in regard to a material matter, and was admissible for that purpose, though incompetent as an admission by the defendant’s agent.

Mxceptions overruled.

* The question and answer were: “ Q. What in your opinion would be the effect upon a board passing over the knives of the planer with a loose cylinder ? A. In my opinion the board would ride upon and jump in cross-grain or anything, and if a man’s hand was anywhere near it would pull his hand in towards the knives according chiefly to the way he had hold of it.”