Bessey v. Newichawanick Co.

Peters, C. J. The essential facts in this case are not really in dispute, but only the inferences to be fairly deduced therefrom. To the court, by agreement of the parties, is left the decision of the case upon both the law and the fact. The plaintiff at the time his injury was received was seventeen years and two months old, and, as far as appears, possessed of such degree of intelligence as ordinarily belongs to one of his years. He had been in the employment of the defendant company in their mill off and on in different ways for about two years, attending “breakers and hoppers” in the card-room, then becoming a spinner in the mill, and lastly working in the dye-house where he had been employed at work jointly with another hand about four weeks before the accident happened; thus becoming a good deal familiarized, no doubt, with different phases of employment in the mill. Before his being personally employed in the dye-house, he had been in and out of the room where the dyeing was carried on, noticing the men at their work, and assisting them occasionally to some extent. The dye-house contained four kettles or vats, each six feet long and five wide, and two feet and seven inches in height above a planking which circled each vat at the floor. The plank, eight or ten inches wide, were laid flatly on the floor and were “beveled off” from the vat. Each vat, having clamps upon it, required the hole in the floor where it was to be set to be a little larger than the [66] vat would be without such attachments, leaving an open space around the vat, and the plank were used to stop up the opening. There was an open frame, a structure fitted with slats, designed to be sunk into the vat, upon which wool and blankets were loaded, sometimes the one and sometimes the other, and then lowered into the vat to be dyed. The frame was fitted with a hoisting gear so that it' could be swung over and then lowered into the vat containing boiling hot dye, and raised up out of the vat when the process of dyeing became completed. In order to raise the frame out of the vat the two men in attendance had to do some coupling of hooks with rings connected with the gearing, which necessitated their leaning over the sides of the vat, while facing each other, to a point near the centre of the vat; and the plaintiff while performing his part of such an act, somehow fell into the vat, and before he could be rescued by his co-worker and another person at work in the same room, was severely scalded and injured thereby. The plaintiff alleges that he was injured through the fault of the defendant, either in not furnishing reasonably safe and proper machinery and appliances, or by its failure to instruct him in the art of using the machinery and explaining the dangers incident to its use. Experience shows us that there is an instinctive proneness in a person who has received an injury to seek for some culpable cause for it other than his own remissness. He can see carelessness in others but is likely to be blind as to his own. Is not that a fair characterization of the contentions in the present case ? The plaintiff’s counsel asserts that the floors about the vats were wet, exposing them to some slipperiness. Did not the plaintiff see that himself? Of course he did as it was a normal and necessary state of things there. But he is reluctant to admit that he did. Counsel for plaintiff contends that the planking about the vat was an improper appliance, rendering the structure defective and dangerous. Is it not true that, had there been no planking about the vat its absence could have been just as reasonably criticised as its existence now is ? Really, the planking must be an assistance to safety [67] if used cautiously, and as any person’s wits would naturally lead him to use it. But, to avoid any imputation of his own fault on this ground the plaintiff endeavors to deny, although he really fails to deny, that he ever noticed that the planks were there, and that leads him to the necessity, to preserve consistency, of saying that he does not know whether he put either foot on the planking or not on the day of the injury or whether he ever did so or not. He says, “ I know now there was a plank because I have heard so many people talk about it.” But he feels compelled to say, “I might have noticed it, sweeping around it, sweeping the wool.” It appears that he habitually swept the floor three or four times a day, clearing up the waste wool collected around all the four vats. On cross-examination he tries to deny knowledge of the planking but really confesses knowledge. We can have no doubt that he many times noticed the planks and their shape and situation. But it is urged that he was not instructed in the use of the machinery or informed of its dangers while being used. That should have been as obvious to him on the day of the accident as to the defendant or its employees. There was an overseer and several other employees habitually in the same room with him. If the plaintiff, was in any respect uninformed of his duties on the day he began his work, but such does not seem to have been the case, he must have become fully acquainted with them by his constant service in the work for four weeks afterwards; especially as he had been working all of that time in cooperation and face to face with another employee of greatly larger experience in the same employment whose example and aid were of themselves a sufficient and the most satisfactory instruction to the new-comer. Their labors were indissoluble, not separate. The counsel for the plaintiff asserts, arguendo, that the plaintiff was standing on the plank, not making it clear whether he means with two feet on the plank or only one, leaning over the vat when his foot slipped off the plank and from under him and he toppled over into the boiling dye. But the plaintiff himself gives no such account of the accident, but merely says he slipped and went into the vat, without stating any further circumstance about the accident, [68] saying repeatedly that he has no knowledge that he ever stepped on the plank at all in any manner. He says he never thought anything about the danger, that he did not remember how he did stand while pushing over the hook to his co-operator, but that his habit was to “walk up to it (the hook) and push it the best way he could and get back.” We feel forced above all else to the conclusion that, whether the defendant was or not in any fault, actual or theoretical merely, the case fails to show that the plaintiff’s own heedlessness was not the great cause of the accident. There must therefore be an entry of, Judgment for defendant.