Robinson v. Sylvester Tower Co.

Morton, J. At the time of the accident the plaintiff operated in the defendant’s piano action factory at Cambridge a small machine, somewhat like a sewing machine, called a “ pinning ” machine, and used to fasten two small pieces of wood together. The machine was run by power transmitted from a six or seven inch grooved pulley on an overhead shaft about an inch in diameter. The power was transmitted by means of a leather cord or belt about three eighths of an inch in diameter, or, as the plaintiff described it, “ about the thickness of a penholder.” The belt was fastened together by a wire put through a hole in each end of it, the two ends of wire being then twisted together and pounded down close to the belt. The belts were thrown off at night and put on again in the morning. The machine was on a bench about three feet above the floor, and the overhead shaft was about five and a half feet above the bench. The plaintiff was five feet and six and a half inches in height. On the morning of the accident she got on to the bench to put the belt on, when her hair got caught by the belt and was wound round the shaft, causing the injuries complained of. We assume in the plaintiff’s favor that she was in the exercise of due care. She testified that she had been accustomed to put on the belt without any objection on the part of the foreman or his assistant; and there was other evidence warranting a finding that it was expected and understood that she should put the belt on. There was nothing to show that she was not putting it on in the usual manner, or to show that the operation of putting it on was so dangerous arid the risk so obvious that she must be deemed to have been wanting in due care in undertaking to put it on or to have assumed the risk. It cannot be said that the question of her due care was not for the jury. [194] But we fail to find any evidence of negligence on the part of the defendant. The jury answered “yes” to the question put to them by the presiding judge: “Did the belt fastener catch into the plaintiff’s hair and cause her injury ? ” The plaintiff’s contention is that the belt fastener had become worn so as to be out of repair, and that the defendant was negligent in not discovering and remedying it. She also contends that the defect could and would have been discovered by proper inspection, and that the defendant was negligent in not having caused such inspection to be made. But, except the fact that in some way the fastening caught in the plaintiff’s hair, there was and is nothing to show that it was defective or out of repair, or to show, if it was defective and out of repair, how long it had been so. The fact that the plaintiff was injured is not enough to render the defendant liable as the law now is. Possibly it could be fairly inferred from the plaintiff’s description of the accident that the twisted part of the wire had bent or sprung out and did not lie flat upon the belt as it should, and that it was that which caught in the plaintiff’s hair and caused the accident. But if that be so, and assuming that such a condition of the fastener would constitute a defect, it does not remove the difficulty, for there was absolutely nothing to show that it had been in that condition for such a length of time that the defendant ought in the exercise of reasonable care to have discovered and remedied it. On the contrary, the plaintiff testified on cross-examination that when she stopped work the night before “ the belt was working all right,” as far as she could remember. There was evidence to the same effect from the man in the defendant’s employ whose business it was to keep the machinery and belts in repair, and also from the foreman in charge of the room, both of whom were called as witnesses by the defendant. If the jury could have disbelieved their testimony and have thought that the plaintiff was possibly mistaken about the condition of the belt the night before, even then there was nothing to show how long the defect, if there was one, had existed or that the defendant was negligent in not having discovered and remedied it. For aught that appears the plaintiff’s act in putting on the belt may have caused the fastening to become bent or sprung. It was not contended that the method of fastening the ends of the belt together was [195] an improper one. We discover no evidence of negligence on the part of the defendant. Amongst the rulings asked for by the defendant was one that upon all the evidence the plaintiff was not entitled to recover. The defendant duly excepted to the refusal of the presiding judge to give the ruling thus requested. No exceptions were taken by the plaintiff. The case appears to have been fully and fairly tried, with no misapprehension or misunderstanding on either side as to the issues involved; and we think that it is one for the application of St. 1909, c. 236, and that the defendant, in addition to having its exceptions sustained, is entitled to have judgment entered in its favor, and that a rescript should be sent accordingly. Exceptions sustained; judgment for the defendant.