Doole v. Dane

Loring, J. The plaintiff testified that the White girl had told her two or three times to try the heat while she (the White girl) was present, and see if it was hot enough; and that she thought it her duty on the morning in question to try the heat in the other girl’s absence. In spite of her testimony to the contrary on cross-examination (that she voluntarily took it upon herself to test the roller in the absence of the other girl) we think that the jury would have been warranted in finding that it was, or that she reasonably might have thought that it was, part of her duty to test the machine in the absence of the White girl. See Slattery v. New York, New Haven, & Hartford Railroad, ante, 453. It was apparent from her examination that she understood the construction and operation of the machine,, the dangers incident to touching the middle roller to see how hot it was, and how it should be touched, with one possible exception. The other girl was called as a witness by the plaintiff after the plaintiff had left the stand. She testified that the top of the middle roller, as that roller revolved, went toward the plaintiff, and for that reason the place to touch the roller to see if it was hot enough was as near the top as possible; and the jury were warranted in finding that this had not been told to the plaintiff. But as we have said, it was apparent that the plaintiff understood the machine. She herself testified that the place was a [526] place where you could see what you were doing; she knew that the pressure had not been put on and that the rollers were some way apart and that the danger consisted in this, namely, that your hand might be drawn in and therefore that you must touch the roller quickly. There is no suggestion that these rollers were revolving at a high rate of speed and that for that reason the way in which they were revolving could not be seen and was not obvious. Taking the plaintiff’s testimony as a whole, it is apparent that although she was but fourteen years of age she had sufficient intelligence to understand and did understand the machine and its dangers. There was therefore no evidence of negligence on the part of the defendant in not giving her warning as to its dangers. The case comes within cases like Burke v. Davis, 191 Mass. 20. Exceptions overruled.