Albert Carleton v. E. & T. Fairbanks & Co.
| Decision Date | 12 February 1915 |
| Citation | 93 A. 462,88 Vt. 537 |
| Parties | ALBERT CARLETON v. E. & T. FAIRBANKS & COMPANY |
| Court | Vermont Supreme Court |
May Term, 1914.
CASE for negligence. Plea, the general issue. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment affirmed.
Joseph Fairbanks, Alexander Dunnett, and Harland B Howe for the defendant.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, AND TAYLOR, JJ.
TAYLOR
This is an action on the case for negligence in failing to provide a safe saw rig and in failing to give the plaintiff proper instructions in the use of a circular saw on which he was injured. The plaintiff was employed in the parts-packing room, so called, of the defendant's scale factory. The injury complained of consisted of a deep cut across the palm of the left hand caused by the hand coming in contact with the saw that plaintiff was using in the course of his employment. The evidence tended to show the following facts:
On the day of the accident, July 19, 1912, the plaintiff was using the saw to split a short piece of board. He was using his left hand alongside or back of the saw to steady the board. The saw caused the board to jump and fly up at the end opposite him, so that his hand was thrown against the saw and severely cut. At the time of the injury, the plaintiff was nineteen years old. He had just graduated from St. Johnsbury Academy and was set to work in the packing room on June 14, 1912. The principal duty of the plaintiff was to pack parts of scales in wooden boxes and to nail them up. The circular saw in question was furnished for the purpose, among others, of fitting crates and box covers and the plaintiff was directed to use it in the performance of his duties. It stood in the packing room which was about thirty feet long and twenty-five feet wide. The saw was mounted on an ordinary wooden saw-table about four feet square. Suspended over the saw-table at the rear of the saw was an adjustable steel wheel about six inches in diameter and of tapering thickness, thinner at the edge, which witnesses at the trial denominated as a guard or spreader. This wheel could be raised or lowered by means of a thumbscrew and shank and its distance from the saw adjusted by a curved tongue, on which it could be moved. This whole device was fastened from above in line with the saw; and when "down" the wheel was held in position about an eighth of an inch above the saw-table and about an inch from the saw on the side away from the operator. The wheel, when lowered far enough to engage the saw-cut in a board passing through the saw, would spread the board and tend to prevent it from binding on the saw; and also, on account of the tapering thickness of the wheel, would tend to keep it from rising or jumping after it had passed under the wheel.
The plaintiff was set to work by the foreman of the packing department, one Corfield, and was told to do what one Noyes, an assistant foreman, instructed him. Noyes and the plaintiff usually worked on the same side of the room and the same side of the saw-table. The evidence was conflicting as to when the plaintiff first commenced to use the saw. Plaintiff testified that he did not use the saw until about one week after entering the department and that from that time until the accident he used it seven or eight times a day, amounting in all to about fifteen minutes per day. The defendant's evidence tended to show that he was not allowed to use the saw for two or three weeks after entering the department and that he had used it one to two weeks before the accident. Before the plaintiff began to use the saw it was his practice to ask some other man, usually Noyes, to do whatever sawing he required. This occurred seven or eight times a day. Plaintiff testified that he did not especially notice how the sawing was done, being busy about something else meantime; while defendant's evidence tended to show that he watched the operation. The saw was in use by someone about three-fourths of the time each day.
The plaintiff testified that he had never used a circular saw before, nor seen one in use, aside from this one, and knew nothing about it; that he was not told in sawing a board to reverse it and did not know that such method ought to be employed. His evidence tended to show that he did not understand the nature and condition of the saw and saw-table in question except what he had learned by using it and observing others use it; that he was never told anything about the guard or spreader, nor what it was used for; that he did not know what it was; that he had never noticed any one using it, but that he supposed it was for use in connection with some other work that was done with the saw; that he thought it was down about half the time; that it was up away from the saw at the time of the injury; that it did not interfere with the splitting of a board when it was down, as the wheel then entered the saw-cut. He further testified that no board ever jumped with him when he was using the saw before the time of the accident, and there was no evidence that he was instructed that there was any danger in that regard.
The evidence as to instructions was conflicting. The plaintiff testified that Noyes told him to be careful not to cut his fingers and that he received no other or different instructions. The defendant's evidence tended to show that the plaintiff was fully instructed in the use of the saw, both by Corfield and Noyes, and was shown how to raise and lower the guard or spreader; that several boards were put through the saw while plaintiff watched and he was instructed how, in splitting a short board, it should be run about half way, then drawn out, reversed and sawed from the other end to meet the first cut, to keep the operator's hands from the saw; that plaintiff was given instructions as to starting and stopping the machinery and the use of the gauge on the saw-table; that he was cautioned to be careful.
The defendant's foreman was first called as a witness by the plaintiff and later by the defendant. In his direct and cross-examination by the plaintiff he testified that in sawing a board the same ought to be sawed half way, then turned end for end and the saw-cut completed from the opposite end, in order to prevent the board's binding on the saw and jumping up, that being the safer way to saw a board; that if such course were not followed the board was liable to "buck" or jump up; that if the guard or spreader was not down in position it was the safest way for the operator to run his left hand by the saw in order to hold down the board and thus prevent it from "bucking" or flying up. Another witness called by the plaintiff testified that in holding a board down on a saw-table, the operator should never let his hand go past the front edge of the saw.
The evidence tended to show that the saw in question when in motion made about 2400 revolutions per minute. Plaintiff's evidence tended to show that a board will occasionally jump on a saw-table and that his may be caused by the spring of the table. The saw itself was not produced in court and there was no evidence as to its condition at the time of the injury, further than what was furnished by the board, which the defendant produced as the one that was being sawed at that time. The plaintiff claimed that the board produced was not the one in question. The defendant produced the saw-table in court with a saw therein similar to the one in use at the time of the accident, and the table was an exhibit in the case. One Clark, called by the plaintiff as an expert, testified that the spring in the table before the jury would be sufficient to make a board jump. There was no evidence respecting defects in the table, except such as was furnished by the table itself and the above testimony by Clark. The defendant's evidence tended to show that the table stood firm in the factory, After Clark had testified as above, it was discovered by one of defendant's witnesses that the table, as it was being demonstrated in court, was jacked upon a cog wheel on one side. The witness released the cog, making the table somewhat firmer, and testified that it stood that way in the factory and not raised on the cog.
At the close of the evidence, the defendant moved for a directed verdict on the grounds: (1) That no negligence on the part of the defendant is established; (2) That the plaintiff assumed the risk; (3) That the plaintiff was guilty of contributory negligence. The court overruled the motion and defendant was allowed an exception as to each ground of the motion. The defendant also excepted to the ruling of the court that the plaintiff could go to the jury on the second count charging negligence in failing to provide a safe saw-table and saw-rig. The court submitted special questions which the jury answered as follows:
Q. Do you find that the defendant was negligent in not furnishing the plaintiff a reasonably safe saw-bench and saw? A. Saw-bench, yes.
Q. Do you find that the defendant was negligent in not giving the plaintiff instructions in the use of the saw? A. Yes.
On the ground of the motion that negligence on the part of the defendant was not established it is unnecessary to consider whether there was sufficient evidence to go to the jury under the second count of the declaration, for the special findings of the jury clearly indicate that their verdict is based upon negligence under both counts; and it will be supported, if the evidence of negligence under the first count is found sufficient. The negligence charged in the first count was in substance defendant's failure to warn the plaintiff of the danger that the...
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