Brady v. Ludlow Manufacturing Co.

Knowlton, J. The only defect relied upon by the plaintiff in this case was an alleged defective condition of the gate. No claim was made on account of the gears, and it was admitted by the plaintiff that he understood the danger of injury from them, and that he needed no instructions about them. The defect in the gate was, that when swung together it would not catch on the fastening, and if fastened would not stay so, but would stand a little way open. There was no contention that the gate was defective in any other particular. It was designed to close automatically, and the undisputed testimony of witnesses for the plaintiff and for the defendant was that this was the best mode of construction for the use for which it was designed. It was not a heavy gate, but was made of light iron rods, and the evidence tended to show that it would remain at rest when partly open, unless something came in contact with it and moved it. The accident seems to have been caused by the plaintiff’s hitting the gate when he was getting up to take the waste from the top of the gears. He said in testifying, “ I know I must have touched it when getting up.” It was necessary to have the gate open when the gears were being cleaned. Upon the undisputed facts, there was no defect or danger of which it was the defendant’s duty to warn the plaintiff, or any particular in which the plaintiff should have been instructed. He understood the dangers involved in cleaning the gears as well as anybody, and the defendant had no reason to fear an accident, except from causes which were obvious to the plaintiff. There was no evidence to warrant a verdict for the plaintiff on the first count. Ciriack v. Merchants’ Woolen Co. 146 Mass. 182. Crowley v. Pacific Mills, 148 Mass. 228. Probert v. Phipps, 149 Mass. 258, 260. The fourth count is founded on the alleged defect in the gate. But the defect had no connection with the accident. If the device for fastening the gate had worked perfectly, it would have made no difference to the plaintiff, for he could not clean the gears without keeping the gate open. There was no evidence that he was injured by reason of any defect or want of repair in the defendant’s machinery or appliances. We are of opinion that it was within the discretion of the presiding judge to order the plaintiff to elect whether he would [472] go to the jury in that trial on the counts at common law, or on those founded upon the statute. In some cases a jury may be able to deal with different counts, founded on the same facts* presenting different issues, and involving different liabilities in damages, at the same time without great difficulty, and it may be just to both parties to submit them to the jury together. In other cases, the presiding judge may see that such a mode of trial would be likely to lead to confusion, and to prevent the jury from reaching a correct result. Much must be left to the discretion of the presiding judge in determining what is conducive to an orderly trial and an intelligent verdict. In the present case, the reasons that required a verdict for the defendant under the first and fourth counts apply' equally to the second and third; so that the plaintiff would not have been injured by the ruling requiring him to elect, if it had been unwarranted in law. JExeeptions overruled.