142 Mass. 522 | Mass. | 1886
The plaintiff, who is a boy thirteen years old, was injured, while in the employ of the defendant, by getting his hand in a machine called a “ winder.” This is a machine about four feet and four inches long and two feet and ten inches high, consisting of three smooth steel cylinders, two large ones with a small one between them, on which cotton is wound. They revolve about fifteen to twenty times a minute. The gears and pulleys connected with them were covered, but there was no fence or other protection against danger from the other part of the machine. A machine called a “ card-grinder ” stood about four and a third feet from the winder, and the plaintiff was required to pass between these machines in doing his work.
The plaintiff had been in the employ of the defendant three weeks and three days when he was injured, and, in the course of his work, had to pass this machine about six times a day; but he did not work on it. It is clear that the winder was not a peculiarly dangerous machine, and that the defendant could not be held liable merely because of a neglect to fence it. Coombs v. New Bedford Cordage Co. 102 Mass. 572. Sullivan v. India Manuf. Co. 113 Mass. 396.
It was the duty of the defendant to give suitable instructions to the plaintiff, having reference to his age and capacity, so as to enable him to understand the dangers, whatever they were, of the employment in which he was engaged; and, as nothing appears to the contrary, we must assume that the court gave appropriate instructions to the jury upon this point.
The defendant was not required by law to fence this machine, but had the right to use it in the manner in which it did; and, if it sufficiently instructed the plaintiff as to the dangers of the machine, he took the risk of those dangers, and cannot recover because the machinery might have been set up so as to be less dangerous.
The issue before the jury was whether the defendant had given the plaintiff such instructions; and the court rightly rejected evidence offered by the plaintiff to show that a gate might have been put up, at slight expense, in front of the winder, or that the winder or the card-grinder might as well have been put in another part of the room. Coombs v. New Bedford Cordage Co., and Sullivan v. India Manuf. Co., ubi supra.
The exceptions taken to the charge of the presiding justice remain to be considered. The bill of exceptions states that, after the charge, the plaintiff excepted to “ portions of the judge’s charge,” and then proceeds to give certain detached sentences of the charge. The context or connection with other parts of the charge is not given, and the plaintiff did not state any reasons for his objections, so as to give the judge the opportunity to correct any accidental inaccuracy in his expressions. Such exceptions ought not to be sustained, unless the plaintiff makes it appear that there is some substantial error in the charge which misled the jury. The first exception is to the statement in the charge, that the question was whether the accident was “ caused by any act of the defendant,” or was the result of want of due care on the part of the plaintiff.
The plaintiff now argues that this prevented the jury from finding for him, if they found that the accident was caused by the negligent omission of its duty by the defendant. But it is reasonably clear that this is not the fair meaning of the charge. Taken in connection with other instructions which must have been given, the expression “ any act of the defendant ” was intended and understood as including any act of omission, as well as of commission.
There was evidence tending to show that the plaintiff was carelessly playing with the machine when he was injured; and the second and third parts of the charge objected to are merely statements that, if the jury found this to be the fact, the plaintiff was guilty of contributory negligence, which would prevent him from recovering; and they are not open to objection.
Exceptions overruled.
