Negligence, Employer's liability. Practice, Civil, Conduct of trial, Requests and rulings. Evidence, Relevancy and materiality, Opinion: experts.
At the trial of an action by a boy seventeen years of age against his employer, the proprietor of a general wood-working establishment, to recover for the loss of the fingers of one hand which were cut off while he was operating a rip saw as a cut-off saw to cut pieces of wood across the grain, there was evidence tending to show that such use of a rip saw was attended by dangers, not apparent, due to the consequent jumping of the wood being sawed, or the throwing of it away by the saw, that it was reasonably necessary, in order to insure safety in such use of a rip saw, to use a gauge, that the plaintiff, who previously had had no experience in the use of circular saws, had been set at work with the saw by the defendant's foreman only four hours before the accident, that neither had the plaintiff been warned or instructed of the danger attending the use of the saw, nor had a gauge been furnished for his use although there were gauges near at hand which might have been used. Held, that there was evidence which would warrant findings, that the plaintiff had not been properly instructed and warned regarding the dangers incident to his work, and that suitable appliances had not been furnished for his work, and therefore that the plaintiff's injury was caused by negligence for which the defendant was liable.
An employer is not relieved from liability at common law for injuries resulting to an employee because he is set at a work which is attended by dangers, not apparent, without adequate instruction or warning, by reason of the fact that the employer delegated to a superintendent the duty of instructing and warning the employee and it was due to the negligence of the superintendent that the duty was not performed.
An employer is not relieved from liability at common law for injuries resulting to an employee because he is set at work on a machine which lacked appliances to insure his safety, by the fact that the employer furnished such appliances to be used on the machine and entrusted the duty of putting them on the machine to a superintendent, to whose negligence was due the fact that they were not used.
A judge presiding at a trial cannot be called upon to give to the jury instructions upon the effect of a possible finding of a particular evidential fact in the case.
At the trial of an action by an employee in a general wood-working establishment against his employer to recover for the loss of the fingers of one hand alleged to have been due to his being set at work upon a rip saw at sawing pieces of wood across the grain, there was evidence tending to show that, to insure his safety, a gauge should have been furnished to use on the saw, but that none was furnished. Evidence was admitted, subject to the defendant's exception, tending to show that there were gauges found the next morning near the saw covered with laths. Held, that the evidence was competent as tending to show that one of the gauges was intended for use on the saw and should have been attached.
At the trial of an action by a boy seventeen years of age against his employer, the proprietor of a general wood-working establishment, to recover for the loss of the fingers of one hand, which were cut off while he was operating a rip saw as a cut-off saw to saw pieces of wood across the grain, in which the plaintiff contends both that, being inexperienced, he was not properly instructed or warned as to the hidden dangers of his employment, and that he was not furnished with appliances proper to insure his safety, it is proper to ask a witness, qualified as an expert on the subject, to state the dangers, not apparent to an inexperienced workman, attending the use of rip saws and cut-off saws in general, and what appliances are "reasonably necessary" to insure safety in the use of a rip saw as the plaintiff was directed to use it.
KNOWLTON, C.J.
Upon the question of liability the defendant contends, first, that there was no evidence to warrant a finding that the defendant negligently failed to give the plaintiff proper instruction. The plaintiff, a boy about seventeen years of age, without experience in the use of circular saws, was set at work upon such a saw, and when he had been working about four hours, his hand was thrown upon the saw and he was very severely injured. There was evidence that he was given but little instruction in regard to the mode of doing the work, and was not warned of dangers of which his employer must have known. The saw was what is called a rip saw, and it was being used at this time as a cut-off saw to cut pieces of wood across the grain. The cross-examination of Fuller, the foreman who set the plaintiff at work and who was called as a witness by the defendant, as well as the testimony of other witnesses, warranted a finding that there were serious dangers in doing the work, of which the plaintiff should have been warned. The case is very similar in many of its features to Wheeler v. Wason Manuf. Co. 135 Mass. 294, 296, and is governed by the decisions in that case and in Jarvis v. Coes Wrench Co. 177 Mass. 170, and Hanson v. Ludlow Manuf. Co. 162 Mass. 187.
There was also evidence from which the jury might have found for the plaintiff on the fourth count, charging failure to supply the plaintiff with suitable machinery. When the plaintiff was set at work upon the saw there was no gauge upon it, and the jury might have found that a gauge should have been used. There was testimony tending to show that there were gauges near by, designed for use upon it. The defendant was responsible for the condition of the machine when the plaintiff was set at work upon it, even though it was in charge of a foreman who told the boy to go to work. The fact that there were parts of the machine not far off, which might have been attached to it, does not exonerate the defendant from liability. In setting the plaintiff at work and in providing the saw for his use and in giving or failing to give him instructions, the foreman represented the defendant corporation, which could not relieve itself of its duty by delegating it to a servant.
There was no error in refusing the instructions requested by the defendant in regard to sawing straight and cross grained wood. The judge was not called upon to give instructions upon the effect of a possible finding of a particular evidential fact in the case, if he properly charged the jury, as we must assume that he did, upon the general subject of giving instructions as to sawing such pieces as were referred to in the testimony.
The testimony about the finding of the gauges covered with laths, near the saw, early the next morning after the accident, was competent. The jury might have found that the gauges were intended for use upon the saw, and, in connection with other testimony, they might have found that one of them should have been attached to the table for use with the saw before the plaintiff was set at work upon it.
The testimony of the expert witness, Faulkner, in regard to the use of gauges upon saws, was rightly received.
Exceptions overruled.