Silva v. Davis

191 Mass. 47 | Mass. | 1906

Morton, J.

There was evidence which would have warranted the jury in finding that one of the defendants directed one Marshall to take the plaintiff, and go to work on a machine known as a buzz planer, and plane out some door frames. The plaintiff was eighteen or nineteen years old, and was hired as “a lumper” at $5 a week and had worked round the shop about three weeks, helping, tying up bundles of sheathing, piling lumber, sweeping and running errands. He never had worked on the planer before, or, as he testified, seen it in operation, and was uninstructed in regard to working upon it. Marshall picked up a plank, called a door frame side, and placed the edge, which was about two inches wide, against the planer to straighten it. This left a part of the knives uncovered. There was a guide or gauge on one side of the machine, and while the plaintiff was assisting Marshall to hold the plank against the guide “it jumped, kicked or flew from under the plaintiff’s hand,” and his hand went into the knives of the planer receiving the injuries complained of. The accident happened within a few moments after the plaintiff had been set to work on the machine. “ There was uncontradicted evidence that the buzz planer was a dangerous machine when used without a guard to do wood planing upon; that when knots, knurls and other irregularities came in contact with the knives, the board was liable to kick up or jump; this action of the board had a strong tendency to throw the hand of the operator against the knives, but an experienced man could get his hands out of the way and protect himself. The evidence was uncontradicted that knots, knurls and other things liable to make the board jump were not always visible on the surface of the board, and that there was no guard on the machine when the plaintiff worked upon it. . . . The plaintiff testified without contradiction that he had no knowledge of the tendency of the board or plank to jump or kick.” He also testified that he knew that there were knives there and that if he put his hand on them he would get hurt. While the plaintiff’s testimony as reported in the bill of exceptions would seem in some respects to have been disingenuous, it is plain, we think, that there was evidence that would have warranted the jury in finding that he was set to work on a dangerous machine without such warning or instruction as he should have had. He knew that there were knives and that if his hand got into them it would be injured. But he did not know, or at least there was evidence tending to show that he did not, of the liability of a board or plank to kick or jump while being planed, and of the danger arising therefrom. It cannot be said, we think, as matter of law, that the risk was an obvious one, or that he assumed it. Joyce v. American Writing Paper Co. 184 Mass. 230. Jarvis v. Coes Wrench Co. 177 Mass. 170. Wheeler v. Wason Manuf. Co. 135 Mass. 294. Hanson v. Ludlow Manuf. Co. 162 Mass. 187.

There was also evidence tending to show that guards were in general use on such machines, and that a guard could have been used as the machine was being operated at the time of the accident, and would have served as a protection to an inexperienced person. It cannot be said, therefore, adopting language used in Wheeler v. Wason Manuf. Co., supra, 296, that the jury would not be warranted in finding that the planer was in an unsafe and improper condition for the plaintiff, a beginner in the. use of such machinery, to be put to work upon.

We see no error in the exclusion of the evidence offered to show that a guard for the machine was made the day after the accident and thereafter used. Whelton v. West End Street Railway, 172 Mass. 555. Lacey v. New York, New Haven, & Hartford Railroad, 168 Mass. 479. And we think that the question put to the expert might properly be excluded by the presiding judge in the exercise of his discretion. But for reasons above stated we think that the judge was wrong in directing a verdict for the defendants.

Pxceptions sustained.