Negligence, Employer's liability: duty to warn. Evidence, Competency, Experiment. Practice, Civil, Requests, rulings and instructions, Charge to jury, Exceptions.
At the trial of an action by an employee in a sausage factory against his employer, who was not a subscriber under the workmen's compensation act, for personal injuries received when his hand was caught in a sausage machine, there was evidence that, previous to the accident, the plaintiff had worked on the machine once, that at no time had its "make up" been explained to him, nor the danger, due to its swiftly revolving knives, of pulling out, with his hand, a piece of meat or something like a cord or bone, he having been directed to let no bones or cords go through the machine; and that he did not realize that danger. Held, that the evidence warranted a verdict for the plaintiff. Exceptions to the refusal by a trial judge to give rulings requested of him by the excepting party will not be sustained where the record does not contain a statement that the entire charge to the jury on the subject matter of the requests is set out; in such circumstances it is assumed that the charge dealt correctly with the subject matter of the requests. The determination of the question, whether a witness at the trial above described should be permitted to "hook up" and operate in the court room a sausage machine similar to the machine by which the plaintiff was injured, but of less horse power and so constructed that the revolving worm therein which carried the meat to the knives moved faster, in order to show that the worm when revolving rapidly did not look like a "straight piece," as the plaintiff had testified, was for the trial judge in his discretion, and an exception to his refusal to grant such permission was overruled.
FIELD, J.
This is an action of tort to recover for personal injuries — the loss of the plaintiff's right hand — received while he was in the employ of the defendant. The defendant was engaged in the business of manufacturing sausages. He carried no compensation insurance. The case was tried by a judge and a jury. There was a verdict for the plaintiff. The defendant's written motion for a directed verdict and his requests for rulings were denied. To these denials, to the granting of one of the plaintiff's requests for rulings, and to the exclusion of certain evidence, the defendant excepted.
This was the second trial of the case. At the former trial a verdict for the defendant was directed. This was held to be error in Jordan v. Velozo, 266 Mass. 76, on the ground that the jury would have been "justified in finding the employer negligent in failing to warn the employee of dangers attending the operation of the sausage machine." However, there was a difference in the evidence at the two trials as to the circumstances under which the plaintiff put his hand into the machine, upon which the defendant relies. At the former trial the plaintiff testified that he was pressing meat into the funnel of the machine. At this trial he testified that he was trying to pull out a piece of meat (or something) like a cord or bone, as he had been told to let no bones or cords go through the machine. We see no sufficient reason for distinguishing the case now made by the evidence from the case considered previously. See also Boyd v. Taylor, 195 Mass. 272; S.C. 202 Mass. 213; S.C. 207 Mass. 335; O'Brien v. Potter Confectionery Co. 219 Mass. 426.
No error appears in the refusal of the defendant's requests for rulings. Some of them, the first, second, third, fourth and seventh, fall necessarily with the motion for a directed verdict. As there is no statement in the bill of exceptions that it contains all parts of the charge relating to the subject matter referred to in the defendant's other requests for rulings, it is to be assumed that the charge dealt correctly with that subject matter. For a like reason the defendant cannot be heard to complain that the instruction given upon the request of the plaintiff, which is set out in the bill of exceptions, was inadequate or was not limited properly. Bird v. Johnston, 230 Mass. 28, 34. Roy v. Parker, 243 Mass. 292, 294, 295. Barnes v. Springfield, 268 Mass. 497, 504.
It was not error to refuse to permit a witness for the defendant to "hook up" and operate in the court room a sausage machine similar to the machine by which the plaintiff was injured, but of less horse power and so constructed that the revolving worm therein which carried the meat to the knives moved faster, in order to show that the worm when revolving rapidly did not look like a "straight piece," as the plaintiff testified. The admission or exclusion of such an experiment "was primarily for the trial judge to determine as a matter of discretion," and his "decision . . . will not be interfered with unless plainly wrong." Field v. Gowdy, 199 Mass. 568, 574. See also Everson v. Casualty Co. of America, 208 Mass. 214, 218-221; McCarthy v. Curry, 240 Mass. 442; Pepper v. Old Colony Trust Co. 252 Mass. 532. The exclusion in this case was not plainly wrong.
Exceptions overruled.