American Mfg. Co. v. Bigelow
| Decision Date | 08 May 1911 |
| Docket Number | 228. |
| Citation | 188 F. 34 |
| Parties | AMERICAN MFG. CO. v. BIGELOW. |
| Court | U.S. Court of Appeals — Second Circuit |
J. F Carew and Thomas F. Magner, for plaintiff in error.
F. W Sparks, for defendant in error.
Before LACOMBE, COXE, and WARD, Circuit Judges.
The action was brought under the employers' liability act (section 200 of chapter 31 of the Consolidated Laws of New York) to recover for injuries sustained from having plaintiff's fingers caught in the gear wheels of a spinning frame. The plaintiff's story was to the effect that she was a 'back-tender' at the frame in question, and was on her knees at the back of the machine cleaning it from fluff and dirt, an operation which was performed every Wednesday; that the machine had been stopped or 'doffed' to enable her to do so, a rule of the company forbidding all employes from cleaning or repairing machinery when in motion. When stopped, it could be started only by moving a bar at the front of the machine. While thus employed, the superintendent, Devine, came along, let out an oath, and wanted to know what it was laying off for. She replied that she was cleaning it, whereupon he mumbled something about getting back to work and walked around to the front of the machine, which thereupon immediately started up Devine at the time being the only person in front of the machine and near enough to it to move the starting bar. Defendant's story was that Devine did not pass or speak to plaintiff while she was cleaning, but was himself busy also on his knees, making some repairs to another machine which was located immediately in front of plaintiff's; that he did not start her machine, but stopped it as soon as he heard her scream; that when she began cleaning her machine was running and continued to run until the accident happened. Since there was evidence in support of each of the stories, there was manifestly no error in denying defendant's motion at the close of the case to direct a verdict in its favor on the ground that 'the overwhelming preponderance of evidence (was) in favor of defendant. ' It was for the jury, not the court, to decide all disputed questions of fact.
The next error assigned is the denial of defendant's motion to strike out all the testimony given by plaintiff 'as to the way the machine started up, by Devine starting it up' as 'purely speculative on her part.' She had stated when first giving her narrative of what took place that Devine 'turned it on,' but later she stated that she did not see him actually start it, did not see his hand on the bar, but that, after the brief conversation with him, he mumbled something about getting back to work and passed around to the front of the machine; that looking under the machine towards the front she could see him there. There was some obstruction to the view due to the presence of bobbins at the front end, but nevertheless she could see that he was there, and that no one else was there and the machine then started. From this she inferred that he must have started it and the jury evidently drew the same inference, a reasonable one if the facts were as she stated them. There was no error in sending to the jury the entire evidence of plaintiff without striking out any of it on the ground stated.
It is next contended that, even if Devine did start the machine, his doing so was not an act of superintendence, but was mere manual labor. Reliance is placed on Guilmartin v. Solway Process Co., 189 N.Y. 490, 82 N.E. 725. The cases are not parallel. Devine was not engaged in a manual detail of work as an incident or result of which the machine started. He, if he did what plaintiff contends he did, determined as a matter of superintendence that at that precise time that particular machine should be set going, and, having thus determined, it is immaterial whether it was actually started by the hand of a subordinate obeying his spoken order or by his own hand obeying the exercise of his own will.
Error is also assigned to the refusal to strike out some testimony given by plaintiff. She had testified that immediately following her scream Devine, who, concededly, was only a few feet away, came to her and carried her to the dressing room. She then added: ...
To continue reading
Request your trial
-
Hintz v. Wagner
... ... Davis, 131 Cal. 635, 63 P. 1005; ... Yore v. Seitz, Cal. , 57 P. 886; Wheeler & W ... Mfg. Co. v. Barrett, 172 Ill. 610, 50 N.E. 325; ... Spencer v. Berns, 114 Iowa 126, 86 N.W. 209; ... 141 Wis. 21, 123 N.W. 138; Baxter v. Chicago & N.W. R. Co. 104 Wis. 307, 80 N.W. 644; American Mfg ... Co. v. Bigelow, 110 C. C. A. 77, 188 F. 34; Smith v ... Hoctor, 107 N.Y.S. 33; ... ...
-
Civil v. Waterman Steamship Corporation
...are told." This testimony, admissible under the spontaneous exclamation or res gestae exception to the hearsay rule, American Mfg. Co. v. Bigelow, 2 Cir., 188 F. 34; 6 Wigmore on Evidence §§ 1745-50 (3d Ed. 1940), corroborated the disciplinary motive behind the assault. It was also reasonab......
-
Overland Const. Co. v. Sydnor, 6437.
...which the jury might properly consider in determining the ultimate issue of the negligence of the appellant. In American Mfg. Co. v. Bigelow (C. C. A. 2) 188 F. 34, 36 (5), the court held admissible a statement the effect of which was that defendant's superintendent had caused the injury to......