Glass v. Hazen Confectionery Co.

DeCourcy, J. The plaintiff, an employee of the defendant, was injured by the revolving knives of a caramel cutting machine. The parts of the machine involved in the case are an endless canvas belt or apron revolving in a horizontal plane, two rolls or rollers which move the apron by friction, and the series of circular parallel knives rotating above the apron. When the power is applied the operator places on the moving apron a tray containing a batch of caramel, and the candy thus carried is cut into strips the first time and into squares the second time it passes beneath the knives. At the time of the accident the plaintiff was at the front end of the machine, and in attempting to make the candy go through the machine straight she pressed her hand down upon the tray, whereupon the hand was thrown forward and under the knives. The case was submitted to the jury on two common law counts, the first alleging that the defendant set her at work upon dangerous machinery without giving her sufficient instruction, the second alleging that she was set at work upon dangerous machinery that was in a defective condition. The case is here upon the defendant’s exceptions to the refusal' of the presiding judge to give certain rulings, also to portions of the charge and to the admission of certain evidence. The legal duty owed by the defendant to the plaintiff with reference to the facts connected with the accident is determined by the preliminary issue: Was the plaintiff acting in the course of her employment when working on the front of the machine, or did she undertake this work as a volunteer, without the defendant’s consent and in disregard of the warnings of others? Upon this question there was evidence to warrant the jury in finding that when the plaintiff applied to the defendant’s superintendent for [103] work she was referred to Mrs. Talbot, the “forelady having charge of the girls;” that Mrs. Talbot had authority to order the plaintiff what to do; that she had taken the plaintiff to this machine, directed her to work with one McDonald who operated it, and said to the plaintiff, “You should mind him and he will tell you what to do; ” and that shortly before the accident McDonald called her from her place at the back of the machine to the front and directed her to watch the candy as it went under the knives and to keep it straight. It is not our province to consider the weight of the evidence submitted by the defendant to contradict the plaintiff’s version and which the jury were not bound to accept. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, 323. The jury found, and were warranted by the evidence in finding that the plaintiff was set at work at the front end of the machine by some person authorized by the defendant to place her there. Grace v. United Society called Shakers, 203 Mass. 355. Cases like O’Brien v. Rideout, 161 Mass. 170, and Grebenstein v. Stone & Webster Engineering Corp. 205 Mass. 431, where the plaintiff was set at work in a dangerous place by an unauthorized fellow servant, do not apply. When the defendant, through McDonald, placed the plaintiff at work on the front of this machine, it became its duty to give her suitable instructions. As it could not delegate this duty to any one else it is liable to the plaintiff if her injury was due to the failure to give her such instructions; and it does not claim to have given her any information or caution upon the subject, contending that it never set her at work on the front of the machine. The defendant further contends that, even if the plaintiff was set at work without instruction, it is not liable because the danger from which the plaintiff suffered was one of which she assumed the risk. This would be true if the danger complained of were an obvious one, such as would be encountered if she permitted her hand to remain upon the moving tray or apron, as manifestly it would be carried into the knives. But the danger of which the plaintiff complains, and one upon which the case was tried, is the liability, when the belt has become loose, of having the hand thrown forward into the knives when it is momentarily pressed upon the moving belt, as in the act of guiding the tray. Such a perilous condition is due to the fact that when the belt is loose it will not [104] move so fast as the rolls; and if one then presses down upon the belt the friction between it and the rolls will be increased and the belt at once will be brought up to their speed. The quickness or jerk in the increase of the speed depends largely upon the degree of looseness of the belt. It cannot be said as matter of law that this danger of the workman’s hand being thrown forward when pressure tightens a loose belt is an obvious one. It is not apparent to the eye of the inexperienced workman, but is hidden and obscure until disclosed by explanation or experience. Wheeler v. Wason Manuf. Co. 135 Mass. 294. Hanson v. Ludlow Manuf. Co. 162 Mass. 187. Jarvis v. Coes Wrench Co. 177 Mass. 170. Halley v. Nashua River Paper Co. 202 Mass. 164. The jury might well find that the plaintiff, unfamiliar with machinery, was not in fault for not realizing this danger, and that the defendant ought to have known of its existence, as it long had been known to the foreman of the room and to McDonald who operated the machine. Under the second count, for failure to furnish a reasonably safe machine, the same result is reached. This duty also was personal to the employer, and was a continuing obligation which might require “frequent and efficient inspection and repair.” Ryan v. Fall River Iron Works Co. 200 Mass. 188, 192. Aside from the absence of a safety guard, the jury could find that the defendant failed in its duty by allowing the belt to become loose and the machine to be in a defective condition in consequence thereof. The issue of the plaintiff’s due care was clearly for the jury upon her testimony. It is apparent from what has been said that the defendant’s requests were properly refused. The questions of the defective condition of the machine and the hidden peril in its operation, the obviousness of the danger and the plaintiff’s assumption of the risk were all for the jury upon the evidence. The second part of the sixth request was not applicable to the case, as the plaintiff’s claim was that she was ignorant of the kind or nature of the real danger and not merely of its degree or extent; and that she had neither knowledge of nor reasonable cause to anticipate the danger. Anderson v. Marrinan, 202 Mass. 193. The last four requests assume the truth of facts that were in dispute. The exceptions to the charge cannot be sustained. Whether Mrs. Talbot was authorized to direct the plaintiff to obey the [105] orders of McDonald was properly and correctly left to the jury. The testimony of the plaintiff and of the defendant’s witness McDonald as to the authority and acts of Mrs. Talbot in the defendant’s factory made the issue one of fact. The single reference in the charge to a guard was not harmful to the defendant. A guard may have been reasonably necessary to ensure a safe machine. See Wheeler v. Wason Manuf. Co. 135 Mass. 294. But the judge carefully instructed the jury in this connection that if the risk or danger was obvious, — as the absence of a guard would be, — there was no liability on the part of the defendant for using this machine and it was not bound to provide a different or safer one. It was discretionary on the part of the presiding judge to read to the jury a request of the plaintiff that had been overlooked; and in doing so he carefully guarded the defendant’s rights. The question asked of the expert witness was admissible. L’Hote v. S. B. Dibble Lumber Co. 203 Mass. 294. The inquiry as to the practicability of having a guard in front of the knives was relevant under the second count. Wheeler v. Wason Manuf. Co. 135 Mass. 294. Silva v. Davis, 191 Mass. 47. Exceptions overruled.