Brady v. Ludlow Manufacturing Co.

Personal Injuries — Master and Servant — Employers’ Liability Act — Negligence — Election. An employer is not liable, either at common law or under the St. of 1887, c. 270, for personal injuries occasioned to an employee by reason of a defect in a machine or appliance, or of the employer’s failure to instruct him respecting his duties, if the only defect relied on had no connection with the accident, and o there was no defect or danger of which it was the employer’s duty to warn the employee, or any particular in which the emploj'ee should have been instructed. At the trial of an action against an employer for personal injuries sustained by an employee, in which the declaration contains counts at common law and under the employer’s liability act, presenting different issues and involving different liabilities in damages, it is within the discretion of the presiding judge to require the plaintiff to elect whether he will go to the jury on the counts at common law, or on those framed upon the statute.

Toet, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration, which was in four counts, alleged that the plaintiff while in the exercise of due care was injured in the defendant’s factory; the first count, which was at common law, alleged that he was injured by a failure of the defendant to give him sufficient instructions as to his duties, and to notify him of the dangers and perils incident thereto; the second, which was framed on the St. of 1887, c. 270, § 1, cl. 1, alleged that he was injured by the failure of the defendant, or of some person in his service intrusted with that duty, to keep the ways, works, and machinery in proper condition; the third, which was framed on the St. of 1887, c. 270, § 1, cl. 2, alleged that he was injured by the negligence of some person in the defendant’s service intrusted with and exercising superintendence, and whose sole and separate duty was that of superintendence; and the fourth, which was also at common law, alleged that he was injured by the defendant’s failure to furnish suitable machinery and appliances for the prosecution of the plaintiff’s work as an employee, and negligence in not keeping them in good repair and condition. At the trial in the Superior Court, before Mason, C. J., there was evidence that the plaintiff, who was at the time of the accident seventeen years and eleven months old, was employed at that time, and had been thus employed for some seven or eight weeks, upon a carding machine in the defendant’s factory; that upon the side of this machine, in plain sight, were about eighteen gears of various sizes, moving in different directions, and some of them revolving very rapidly; that enclosing this machine, and at a distance of about five inches therefrom, was an iron fence made of light iron rods and bars, which covered the gears, and was so constructed that one half of it formed a gate; that this gate was made to swing automatically, and when closed rested upon a tongue or dog projecting from the side of the m.achine, and was secured by the bottom rail of the gate resting in a slot or groove near the end of this tongue; that it was the safer way thus to have the gate shut automatically; that waste material would accumulate both under and over the gears of this machine, and it was a part of the plaintiff’s duty to remove this waste, and he had been instructed by the defendant’s foreman to do so when the machine was in motion; and that just before the accident, and shortly after eight o’clock in the morning, the plaintiff, in order to remove waste from the machine, opened the gate and stood in the gap thus formed, as it was necessary to do, and while thus at work was struck in the back by the gate as it swung to, and was pushed or fell forward upon the machine, and was caught by the gears and seriously injured. The only defect relied on by the plaintiff was the defective condition of the gate in this, that when the gate came to, instead of the bottom rail sliding upon the tongue and falling into the slot and there remaining, it would strike against the end of the tongue and there remain only until the vibration of the machinery caused it to rebound, when it would stand open a foot or two; or if the bottom rail did slide into the slot, it would not remain fastened there, but the jar of the machinery would dislodge it and cause it thus to stand open unless moved by hand. The plaintiff, in describing the accident, testified that in freeing the gears from waste he stepped “ between the fence and the machine, and put my arm in and pulled the waste away. There was more waste there than usual. As I was doing this, the gate slammed on me and knocked me in between the gears. I had both hands on the waste, trying to release it. I was there about a minute before I got caught.” On cross-examination, the plaintiff admitted that he could see well enough at the time he was injured ; that he could see the gears plainly, and saw they were running, and could see where he put his hand; that he knew the gate was standing open, and no one swung it on to him, but he thought he hit the gate with his back as he was getting up, after taking the waste from underneath the gears, when he had to go down on his knees and was getting up to take the waste from the top of the gears. He testified, “ I know I must have touched it when getting up.” He also testified that he knew that if he got caught in the gears he should get hurt, and that he “ did not need any instructions about that.” At the conclusion of the evidence, the judge, at the defendant’s request, ruled that the plaintiff must elect to proceed under the first and fourth counts, or, the third count having been waived, under the second count; and the plaintiff excepted. The plaintiff elected to go to the jury on the first and fourth counts, and the judge thereupon, at the defendant’s request, ■ ruled that the evidence was not sufficient to go tó the jury, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.