L'Hote v. S. B. Dibble Lumber Co.

Knowlton, C. J. Upon the question of liability the defendant contends, first, that there was no evidence to warrant a finding that the defendant negligently failed to give the plaintiff proper instruction. The plaintiff, a boy about seventeen years of age, without experience in the use of circular saws, was set at work upon such a saw, and when he had been working about four hours, his hand was thrown upon the saw and he was very severely injured. There was evidence that he was given but little instruction in regard to the mode of doing the work, and was not warned of dangers of which his employer must have [298] known. The saw was what is called a rip saw, and it was being used at this time as a cut-off saw to cut pieces of wood across the grain. The cross-examination of Fuller, the foreman who set the plaintiff at work and who was called as a witness by the defendant, as well as the testimony of other witnesses, warranted a finding that there were serious dangers in doing the work, of which the plaintiff should have been warned. The case is very similar in many of its features to Wheeler v. Wason Manuf. Co. 135 Mass. 294, 296, and is governed by the decisions in that case and in Jarvis v. Coes Wrench Co. 177 Mass. 170, and Hanson v. Ludlow Manuf. Co. 162 Mass. 187. There was also evidence from which the jury might have found for the plaintiff on the fourth count, charging failure to supply the plaintiff with suitable machinery. When the plaintiff was set at work upon the saw there was no gouge upon it, and the jury might have found that a gouge should have been used. There was testimony tending to show that there were gouges near by, designed for use upon it. The defendant was responsible for the condition of the machine when the plaintiff was set at work upon it, even though it was in charge of a foreman who told the boy to go to work. The fact that there were parts of the machine not far off, which might have been attached to it, does not exonerate the defendant from liability. In setting the plaintiff at work and in providing the saw for his use and in giving or failing to give him instructions, the foreman represented the defendant corporation, which could not relieve itself of its duty by delegating it to a servant. There was no error in refusing the instructions requested by the defendant in regard to sawing straight and cross grained wood. The judge was not called upon to give instructions upon the effect of a possible finding of a particular evidential fact in the case, if he properly charged the jury, as we must assume that he did, upon the general subject of giving instructions as to sawing such pieces as were referred to in the testimony. The testimony about the finding of the gouges covered with laths, near the saw, early the next morning after the accident, was competent. The jury might have found that the gouges were intended for use upon the saw, and, in connection with other testimony, they might have found that one of them should [299] have been attached to the table for use with the saw before the plaintiff was set at work upon it. The testimony of the expert witness, Faulkner, in regard to the use of gouges upon saws, was rightly received. Exceptions overruled.