Bjbjian v. Woonsocket Rubber Co.

Barker, J. Upon the report, the question is whether the jury could find that some breach of the defendant’s duty to the plaintiff caused his hurt, and that he was himself using due care. 1. The fault of the workman who after oiling the machine neglected to readjust its cylinders cannot be imputed to the defendant. The oiling of the machine was one of the daily matters, regularly incident to its ordinary use, which must be intrusted to servants ; and in such cases, if a competent servant is selected, his negligence on a single occasion cannot be imputed to the master. Johnson v. Boston Tow-Boat Co. 135 Mass. 209. McGee v. Boston Cordage Co. 139 Mass. 445. Moynihan v. Hills Co. 146 Mass. 586. Ryalls v. Mechanics’ Mills, 150 Mass. 190, 195. 2. A majority of the court are of opinion that there was evidence of a breach of the defendant’s duty to give instruction and warning. The jury may have found that the plaintiff’s state of pupilage as to his work had not ended, and that Healy was yet charged with the duty of instructing him how to use the machine safely and properly ; that the plaintiff’s experience with the machine had been so very brief that he was chargeable with no more knowledge of it than he actually had; that he did not know that the cylinders were or could be out of adjustment; that he knew of no way of feeding the material but by the use of his hands; that the sudden falling through of the two pieces of rubber gave him no actual knowledge that the machine was [220] not in a condition for use; and that when the pieces so fell he turned for advice to Healy, and that Healy’s laugh was in effect a direction to go on as before. If, as the jury might find, the quick falling through of the rubber would at once show an experienced workman that the cylinders were too far apart, it was the duty of Healy, if he still had the plaintiff in charge, and if he understood when the pieces first fell through that he was applied to by the plaintiff for instructions, to warn him against attempting to feed the pieces again until the cylinders had been readjusted ; and an omission so to do would be imputable to the defendant, on whom rested whatever duty there was to give the plaintiff warning. For this purpose, Healy represented the defendant; and if the defendant was found, through Healy, to have known that a need of warning had arisen, there was a duty to give it, although the danger came from the fault of a fellow servant, and although, as held in Siddall v. Pacific Mills, 162 Mass. 378, 382, the employer is not ordinarily called upon to warn against dangers which can only result from the fault of fellow servants. The plaintiff was an adult; and, as stated in Stuart v. West End Street Railway, 163 Mass. 391, the doctrine that it is the duty of an employer to give instructions to one about to work on dangerous machinery when there are danger's which the employer knows or ought to know and which he has reason to believe his employee does not know, and will not discover in time to protect himself from injury, is to be applied in favor of adults with great caution; and the employer is not required to give warning where the elements of the danger are so obvious to a careful person of average intelligence that ordinary prudence should make him avoid them without warning. While in the present instance many of the elements' of the danger were obvious, the circumstance that the cylinders were much too far apart was not, owing to their position, Obvious ; and it was this circumstance which very much increased the danger to the plaintiff in feeding his machine in the usual manner. If the plaintiff by looking at Héaly when the pieces of rubber fell through asked for instruction, he should have been warned not to repeat the operation of feeding them with his hands until the cylinders had been readjusted. 3. A majority of the court are also of opinion that the question whether the plaintiff was guilty of negligence, in attempting [221] again to feed with his hands the pieces which had just fallen through, was for the jury. Of course, no man of ordinary intelligence, with a day’s experience in operating the machine, could contend that he did not know that if his hands were so placed between the upper portions of the revolving cylinders as to come in contact with their surfaces, there was obvious danger that his arms would be drawn in. The plaintiff admitted that he knew that, if he put his fingers between the cylinders, they would be cut or broken, and there was uncontradicted evidence that he had been told that the machine was dangerous, and that he must be very careful. And besides this, the sudden falling through of the pieces of rubber when first fed was enough to make it his duty to inquire of himself or of his instructor whether he ought to feed them in the same way again. But the machine as then out of adjustment was very much more dangerous than usual. The jury may have found that the plaintiff was then for the first time confronted with this increased danger, and that he did not know to what the unusual course of things was due, nor what he ought under such circumstances to do. If, without asking for advice, he had again placed the pieces of rubber in the machine with his hands, he might have been said to be at fault, although that was the usual way of feeding, and the only way in which he had been instructed. If he was yet a pupil, ordinary care required that he should not repeat such an operation without asking for instructions. The plaintiff’s testimony, however, justified a finding that, upon the first indication of the increased danger, he did in fact by a look appeal to Healy for advice, and got merely a laugh in reply, and the jury may have found that in this way the plaintiff did in effect inquire of Healy what he ought to do, and was in effect instructed to go on as before. If so, we think it cannot be said, as matter of law, that he was negligent in again attempting to feed the machine in the usual manner. His want of personal experience tended to justify him in following the directions of the man who had him in charge, and his imperfect knowledge of English must be taken into account in determining whether he was at fault in asking advice by a look, and interpreting the answering laugh as a direction to do as before. Judgment for the plaintiff on the verdict.