Kelley v. The Silver Spring Bleaching and Dyeing Co.

• Decision Date: 20 April 1878
• Citation: 12 R.I. 112
• Parties: THOMAS KELLEY v. THE SILVER SPRING BLEACHING AND DYEING COMPANY.
• Court: Rhode Island Supreme Court

12 R.I. 112

THOMAS KELLEY v. THE SILVER SPRING BLEACHING AND DYEING COMPANY.

Supreme Court of Rhode Island.

April 20, 1878

In an action brought by a workman against the coporation which employed him, to recover compensation for injuries which the plaintiff alleged were caused by the neglience of the defendant in not keeping in proper repair certain machinery operated by the plaintiff, in not keeping this machinery properly protected and boxed, and in not keeping the room in which this machinery was placed properly lighted, it appeared that the plaintiff was a man of mature years and ordinary intelligence, and had worked at the machinery in question for four years; that the room was lighted as usual; that he had operated the machinery for weeks in its imperfect state without protest or complaint; and that no statute in Rhode Island required such machinery to be boxed:

Held that the plaintiff could not recover.

Held further, that one voluntarily entering a dangerous service knowing the danger, himself assumes the risk of his employment.

Held, further, that one continuing to work exposed to a known danger, without complaint, without any promise that the danger shall be removed, and not under stress of special exigency, consents to the risk of his employment.

DEFENDANT'S petition for a new trial.

The rule that one who voluntarily enters a dangerous service, knowing the danger, assumes the risk of his employment, applied, in an action brought by a man of mature years and ordinary intelligence to recover of the employing corporation for an injury resulting from the use of certain driving gear without boxing; he having operated it for several weeks in its defective condition without complaint, and under no stress of special exigency.

Francis W. Miner & William G. Roelker, for plaintiff.

Benjamin F. Thurston and E. C. & S. Ames, for defendant.

DURFEE C. J.

This is a petition for the new trial of an action of the case for negligence resulting in the mutilation of the plaintiff's hand. The action was tried to a jury in this court, at the October Term, 1875. The testimony then submitted by the plaintiff was to the following effect, to wit:

The plaintiff was injured January 12, 1874. He then was, and for four years had been, in the employ of the defendant corporation in its dye-house as a gig-tender. A gig is a machine consisting of two rollers, set in a frame, which are made to revolve by gears connected with the main shafting of the dye-house, from which they receive their motion. The instrument by which they are connected is called the shipper or shipping apparatus. The gig is used, in the process of dyeing, to cause a roll of cloth to work down from one of the rollers into a vat of dyeing liquor and there to wallow a while, and then to come up and be rolled on the other roller. There were several gigs in the dye-house. The gig operated by the plaintiff was nearest the corner which contained the driving gears of the main shafting. These gears revolved with an upward motion, so that they would not be likely to injure any person, unless he came in contact with them from below. They revolved behind a boarding or boxing; but, previous to the accident, some four or five inches of the lower part of this boarding or boxing had been broken away so as to expose them. The plaintiff testified that the gears had been so exposed for several weeks, but that he had never complained of the defect or called attention to it; also, for some weeks prior to the accident, the plaintiff's gig had been out of repair. He complained of the defects to the company's agent, but the agent declined to repair them, saying that the company would not furnish the necessary materials. The defects were in the gears of the gig and in the clutches of the shipping apparatus. The gears were defective from loss of teeth, so that when they were in motion there was a constant jar caused by the broken teeth. The clutches of the shipping apparatus were worn, so that the jar of the gigs caused them to slip apart and the gigs to stop, thus impeding the work and tending to injure the cloth which was dyeing. These defects were aggravated by the unevenness of the floor where the gig stood. The plaintiff, after the company's agent had refused to repair his gig, resorted to a contrivance which was quite commonly used by employees in the dye-house whose gigs troubled them in a similar manner. The contrivance was a rope or string, one end of which was, in the case of the plaintiff, fastened to an iron brace near the boxing of the corner gears, and the other end of which was fashioned into a loop or noose, which, being slipped over the shipper, kept it from displacement, and so insured a more regular operation of the gig. The company's agent probably knew of this use of the rope or string and did not object to it, but there was no positive testimony that the company ever otherwise authorized or approved of it. On the 12th of January, 1874, the plaintiff commenced work in the dye-house at seven o'clock A. M. At that hour the light was still imperfect. The room, too, was full of steam or vapor rising from the liquors boiling in the vats, so that at the sides and in the corners it was difficult to see with distinctness. In the corner occupied by the plaintiff there was no light to lessen the obscurity. The accident occurred at fifteen minutes after seven o'clock in the morning. The plaintiff was looking or feeling for the rope, the looped end of which had fallen on the floor, and having found it, was lifting it between his thumb and forefinger, when his little finger, catching in the corner gears, drew his hand after it, causing the injury complained of. He was at the time thirty years of age, and, for anything that appears, of ordinary intelligence. After the accident the corner gears were more completely covered and the floor and gig repaired.

The testimony submitted by the plaintiff was contradicted in several of its most vital points by the testimony submitted by the defendant corporation. The defendant presented numerous requests for specific instruction to the jury, which the court either declined to grant or granted with qualifications. The petition for a new trial rests on the grounds that the verdict was against the evidence, and against the law as laid down by the court, and that the court erred in refusing to instruct the jury as requested. We do not think it is necessary, in the view which we take of the case, to state in detail either the testimony of the defendant or the requests for instruction. The fundamental question, however variously it may be presented, is whether, on the plaintiff's own testimony, there is any case which entitles him to a verdict? We will address ourselves directly to that question, assuming for that purpose that the testimony submitted by the plaintiff is true.

The plaintiff claims that the injury which he received resulted from a combination of causes, for each of which the defendant was to blame. He contends that if the room had been duly lighted, or if the gig had been kept in good working order, or if the corner gears had been properly boxed, the accident would not have occurred. He also contends that the corporation negligently permitted these causes to exist when it was under obligation to him, as its employee, to remove them or protect him against them. Let us consider whether this proposition can be maintained.

1. Was the corporation under any obligation to have its dyehouse lighted on the morning of the accident? It does not appear that it had ever been usual to light up even on the shortest mornings. The plaintiff, who had worked four years as gig-tender, must have known that the room was not likely to be lighted. If, then, the absence of lights was dangerous, it was a danger incident to his employment which he voluntarily incurred. We do not find a particle of evidence to support the claim that the corporation was under any obligation to the plaintiff to have the room lighted, unless the exposure of the corner gears made it obligatory, and we shall hereafter consider whether it was bound to guard him against that danger.

2. Was the corporation under any obligation to the plaintiff to keep his gig in good working order? We cannot find that it was. A manufacturer has the right to keep a machine in use after it has become old and defective, unless its defects expose the operative to some latent or extraordinary danger. Hayden v. Smithville Manufacturing Company, 29 Conn. 548. It is not...