Donahue v. Drown

C. Allen, J. It was contended by the plaintiff, and there was some evidence to show, that the machine which the plaintiff was engaged in cleaning, as well as some others of the defendant’s machines, would “start of themselves,” that is, without being started by any person’s direct act. The defendant contended that, if the fact was so, it was not known to himself or to his foreman. He testified, indeed, that this machine could not start of itself. The cause of the machine’s thus starting of itself, if that did in fact so happen, must be the shifting of the belt from the loose pulley to the fixed pulley. The jury might properly find, upon the evidence, that this was the cause of the starting of the machine at the time of the injury to the plaintiff, and that a proper construction and arrangement of the pulleys and adjustment of the belt would have prevented such a casual shifting of the belt. They might, therefore, properly infer negligence on the part of the defendant in failing to provide machinery constructed, arranged, or set up in such suitable manner as to be sufficiently safe, and that a due examination x>f the machinery would have' disclosed its imperfection. The plaintiff’s expert testified that there was a tendency to throw the belt over from the loose pulley on to the fixed pulley, and thus [24] to start up the screw in the bottom of the cylinder. If this was the fact, it was sufficient to warrant a finding of the defendant’s negligence. The omission to provide machinery properly prepared and arranged to guard against a danger of that kind would be negligence for which the master' would be responsible, and not merely the negligence of a fellow servant. But it is contended on the part of the defendant, that, if this danger existed, it was a matter of common knowledge among the operatives, and that the plaintiff herself in the exercise of due care ought to have known it. It is conceded that no notice was given to her of the danger, and there could not have been, since the defendant and his engineer, carpenter, and foreman testified that they were not aware of its existence. The plaintiff, on the other hand, testified that she was not aware of it either, and she contends that she ought not to be held to a higher degree of knowledge than they possessed. She was set to clean a machine which was not in operation, and she was performing this service in a way which would have been safe if the machine did not start up, but which would be dangerous if it were to start up. It becomes a question, therefore, whether she was bound to anticipate that it might start up. The case is obviously different from those where one has been hurt while at work upon or with a machine which was in motion. Here the machine was at rest, and it was to be cleaned by the plaintiff while at rest. If she had put her hand into the cylinder while the screw was in motion, that might be deemed an act of carelessness. But, according to her testimony, she put her hand in while the screw was still, and it started up of itself while her hand was-in, so that the question is whether she ought to have anticipated that this might so happen. She testified that she had never seen this machine start of itself, and did not know that it had ever done so; though she had seen other machines so start, at least one other, upon which she was not working at the time. The fact that this had happened within her knowledge with other machines, equipped with other pulleys and belts, might or might not be deemed sufficient to put her on her guard. That would be for the jury to say. As to this particular machine, she testified that she did not suppose or suspect that there was anything out of order, or wrong, or defective, but that she believed it to be all [25] right. It cannot be said, as matter of law, that she must be held to have been negligent, or to have assumed the risk. The defendant further contends, that she should have used a scraper to scrape off the paste that stuck to the parts of the machine, or have relied on hot water alone to melt it so that it would float off. There was testimony that a little iron scraper was sometimes used for this purpose. This is a detail in the manner of cleaning the machine in respect to which the jury who saw it could determine better than we. There was other testimony that rags were used for wiping the inside of the cylinder, and this, as well as the use of the little scraper, would seem naturally to involve putting the hand into the cylinder, though possibly the work might have been done otherwise. On the whole, we find nothing which would have warranted the withdrawal of the case from the jury. Exceptions overruled.