135 Mass. 294 | Mass. | 1883
The presiding judge properly refused to rule that, upon all the evidence in the case, the jury would not be warranted in finding that the saw was in an unsafe or improper condition. The general duty of a master who employs a servant upon dangerous machinery, like a circular saw, to take all reasonable precautions for the safety of the servant, is not denied, or open to doubt. The question in this case was, whether the defendant had performed this duty. We cannot say, as matter of law, that the fact that such saws are ordinarily used without a guard, is conclusive to show that a saw without a guard is in a safe and proper condition for a workman as inexperienced as the plaintiff was. There was evidence tending to show that boards while being sawed sometimes spring back, and that it is customary to put the hand behind the saw to steady a board which becomes unsteady in sawing; so that, if the board springs back ■under such circumstances, it is liable to bring the hand of the workman directly upon the saw. This is the way in which the accident in the present case appears to have happened. There was evidence, not only on the part of the plaintiff, but on the part of the defendant, tending to show that it is practicable, in sawing boards into strips, and in some other kinds of work, to have a guard, of about the thickness of the saw, so placed and adjusted behind the saw as to furnish a great protection in case of the board jumping back when the hand is behind the saw. It was also admitted by the defendant that there was a guard which belonged to this saw, as a part of the equipment of the machine,
This case, therefore, is not like one where a practised and skilful workman is set to work upon machinery which, though dangerous in itself, and requiring the use of great care, he nevertheless thoroughly understands, and is willing to take the risk of using, in the condition in which he finds it. We cannot say that the jury would not be warranted in finding that the saw was in an unsafe and improper condition for the plaintiff, a beginner in the use of such machinery, to be put to work upon.
The refusal to rule that the defendant was not bound to provide a saw with any guard or protection rests upon the same ground. It was a question of fact what protection should be afforded, or whether any guard was reasonably necessary.
We also think that there was evidence which would warrant the jury in finding that there was danger in using the saw, which was known by the defendant and not known by the plaintiff, and which he might not have known, though in the exercise of ordinary care. The jury might well hold the defendant to be acquainted with the tendency of a board, when warped, to spring back during the operation of sawing; and also with the tendency, especially on the part of an inexperienced person, to put his hand around behind the saw for the purpose of steadying the board, if running unsteadily. This is not a danger so obvious that an inexperienced workman, just beginning to learn how to use a circular saw in splitting boards, must be held necessarily to take cognizance of it. The general danger of contact with such a saw, when in motion, is plain; the particular danger to be guarded against, from behind the saw, which according to some
The defendant presents the further question, whether a master’s duty of giving notice to his servant of risks and perils to which the latter will be exposed in the course of his employment, when such duty exists, is an absolute one, or whether it is merely the duty of taking reasonable and proper pains to inform the servant of them. This question arises in three forms: first, in the refusal to instruct the jury that if Fargo, the foreman, directed Pierce to give proper instruction and caution to the plaintiff, the latter cannot recover by reason of Pierce’s failure to do so, if he was a competent person for that purpose; secondly, in the instruction, that, if there were dangers in the business known to the defendant, which by reason of the plaintiff’s inexperience were unknown to him, and which by the exercise of ordinary care he could not have known, the defendant was bound at its peril to give him reasonable warning of them; and thirdly, in the exclusion of the evidence of what Fargo told Snow to do, in instructing and directing the plaintiff in the use of the saw, and superintending his work upon the machine. We do not understand that any question was raised as to the degree of minuteness to which the notice should extend, in respect to the details of the danger. That question was somewhat considered in Coombs v. New Bedford Cordage Co. 102 Mass. 572, 596. But the question here is the more general one, whether it is an affirmative, positive duty resting upon the master, for the non-performance of which he will be liable, or whether it can be delegated to a proper substitute, and he be thereby relieved from responsibility. We are of opinion that the duty resting upon the master is not merely one of reasonable care and diligence to give a proper notice; but that he is responsible in case the servant suffers through a want of receiving a proper notice of the risks to which he is exposed. The servant does not assume, and is not to bear the risk of, unknown and undisclosed perils; but he is held to take those risks which he knows, or which, by the exercise of ordinary care, he ought to know, to be incident to the nature of the business in the place where and the manner in which it is carried on. The master’s duty is to provide machinery which is reasonably safe and proper ; and if the use of it is attended with
An exception is also urged to the instruction of the judge, that if, in the opinion of the jury, the defendant, in the use of ordinary care, ought to have furnished a guard similar to that testified of by one Richards as in use upon his saw, and the accident happened by reason of its failure to furnish it, the defendant would be liable. This was not equivalent to an instruction that the defendant was bound to adopt any particular improvement, or new appliance or safeguard, but it was left to the jury to determine what in their opinion the defendant, in the use of ordinary care, ought to have done. It is true that Richards testified that he had never seen another guard like the one in use upon his saw. But some of the witnesses called by the defendant testified that they had seen guards upon circular saws, at various times,
For these reasons, in the opinion of a majority of the court, the entry must be Exceptions overruled.