Odabashian v. Apsley Rubber Co.

Sheldon, J. This bill of exceptions is needlessly voluminous. Much of the evidence is set forth by question and answer, when it readily might have been put in narrative form. The jury were warranted in finding that the plaintiff was in the exercise of due care and had not made a contractual assumption of the risk of what happened. Doubtless the risk of one’s hand being drawn into the revolving rollers of a machine is ordinarily obvious, but the special risk of this result following from the hands being caught in an adhesive substance not known to be 1 such is not necessarily so. There are open only the issues raised by the sixth count of the plaintiff’s declaration, upon which the verdict in his favor was found; and we must now take it that adequate and correct instructions were given to the jury upon this count, if it was properly submitted to them at all. The plaintiff’s injury, as has been found, was due to his hand being drawn by the hot and sticky rubber upon which he was at work between the rolls of a machine called a “ cracker.” That condition of the rubber was caused by the heating of the rolls; but for this alone he cannot recover, because it was caused by the act of a fellow workman. But there was evidence that both white, red and black rubber were intended to be run through the “cracker,” and that different degrees of heat were required to be applied to the rollers for these different kinds of rubber, the white rubber requiring the highest temperature and the black the lowest, but that the plaintiff did not know this and was ignorant of the greater danger involved by the greater heat required when some kinds of rubber were used, and the increased risk of the rubber [69] becoming so hot and sticky that he could not extricate his hands therefrom before they reached the rolls. The heat was applied to the rollers by means of steam, and this was done by another workman; and the plaintiff, as he testified, knew nothing about this, and never knew or feared that the rolls might get so hot as to create the danger spoken of.* In our opinion, the jury had a right to find that it was necessary in the operation of this machine to raise the rollers to various temperatures, sometimes so high as to create a special danger in using the hands to push the rubber toward the rollers from the risk of their adhering so firmly to the heated and sticky rubber that they could not be withdrawn in time to save them from being carried between the rollers with the rubber in which they were held. As it could be found that the plaintiff was new to this kind of work, was ignorant of the danger, and received no warning or instruction about it, it remains only to determine whether there was evidence that the defendant ought to have foreseen this danger and to have given instruction and warning to him, so that he might have kept his hands out of the rubber when it was in this condition. But manifestly, if a temperature was needed for white or red rubber which might too greatly heat and make adhesive black rubber, it might be found even without direct evidence that this would be known to those who were familiar with the machine and its operation. If so, the jury could infer that it ought to be known to the defendant; and in the opinion of the majority of the court due care on its part would require it to give proper instruction and necessary warning to one who was new to such work. The case would come within the principle of Glass v. Hazen Confectionery Co. 211 Mass. 99, and cases cited. It is said that no such accident ever had happened before; and Gould v. Slater Woolen Co. 147 Mass. 315, is relied on by the defendant. But that is not decisive here. No such accident as this is claimed to have been would be likely to happen to an experienced workman, or to one who had been properly instructed and warned; it could not have happened without either a failure of duty on the part of the defendant or carelessness on the part of the workman. [70] We find nothing inconsistent with what we have said in any of the cases cited by the defendant; and we have nothing to do with the weight of the evidence, to which much of the defendant’s argument really has been directed. The plaintiff rightly was allowed to testify that he did not know of any danger in using the “cracker” in the condition in which it was, or of any danger in the roll getting heated so that the rubber would stick to his hand. Malcolm v. Fuller, 152 Mass. 160, 167, 168. Exceptions overruled. Footnotes [*] It was necessary to have the rubber pass twice between the rollers. The accident happened when the plaintiff was trying to put black rubber through the rollers for the second time after it had become very hot.