Card v. Turner Centre Dairying Ass'n

Carroll, J. The plaintiff, while cranking a two-cylinder Buick motor truck belonging to the defendant, was injured by the engine “kicking back.” At the time of the accident he was employed by the defendant, who was not a subscriber under the workmen’s compensation act. The sole question is whether there is any evidence of the defendant’s negligence. The plaintiff advanced the gas lever approximately one third of the quarter circle through which it turned, and moved forward about the same distance, the spark lever. He then attempted to crank the engine; it kicked back, and the crank handle struck him, causing the injury. Immediately, without changing the levers, he again turned the crank, and the engine started. The evidence shows that a “kicking back” is the result of an explosion coming before the piston has reached the head of the cylinder. If the spark lever is advanced on the dial, it changes [527] the position of the contact points, so that the cam drives them apart before the piston has gone over the centre. On the other hand, when the spark lever is retarded, the spark comes after the piston has passed the centre. Before cranking a car it is important to have the spark lever in a retarded position. With a new car, this lever should be pushed back as far as it can go. If the car is worn so there is lost motion, the spark should be advanced in order to correspond with this loss. The truck was new when purchased by the defendant in July, 1912. The plaintiff was injured in November of the same year. There was no evidence indicating any lost motion which required the advance of the spark lever, or, if there were such a condition, that it would be due to the defendant’s negligence. While one of the wheels was broken and the wind shield damaged, in the summer of 1912, no part of the engine or steering apparatus was injured. The only evidence tending to show a defect or want of repair came from the plaintiff, who said he had noticéd many times before he was hurt that the engine would “ skip.” Assuming this to be so, it does not show that the “skipping” was in any way connected with the backward motion of the engine. The plaintiff’s experts testified that the “skipping” of an engine might indicate a short circuit, the stripping of a gear, or a lost pin; and it might happen when there was “no kick back and no danger whatever.” It did not directly appear what caused the “skipping,” nor that any conditions existed which were likely to cause it. It further appeared that the more force used in cranking, the greater the momentum given to the fly-wheel, thus causing the piston to go over the centre. Considering the entire evidence, we do not discover anything indicating a defect or want of repair which caused the crank handle to hit the plaintiff. If the engine was in proper condition, advancing the spark lever would cause the backward motion;. and if the machine was worn by use, a proper adjustment of the levers would compensate for the loss of motion. Under these circumstances we do not see how it/ successfully, can be contended that the defendant was negligent. No inference unfavorable to the defendant could be drawn because it failed to call the employees at the garage where the [528] truck was kept. These witnesses were equally available to the plaintiff. Fletcher v. Willis, 180 Mass. 243. Wigmore on Evidence, § 288. According to the terms of the report, judgment is to be entered for the defendant. So ordered.