Campbell v. Eveleth

• Decision Date: 03 September 1890
• Citation: 21 A. 784,83 Me. 50
• Parties: CAMPBELL v. EVELETH.
• Court: Maine Supreme Court

21 A. 784

83 Me. 50

CAMPBELL

v. EVELETH.

Supreme Judicial Court of Maine.

Sept. 3, 1890.

(Official.)

On report from supreme judicial court, Penobscot county.

The parties agreed that, if the action can be maintained on the plaintiff's evidence, it should stand for trial; otherwise, judgment to be entered for the defendant.

The action was to recover damages for the loss of the plaintiff's right hand while at work in the defendant's saw-mill, operating a lath-machine, which he alleged was defectively constructed, and in the use of which he had not been properly instructed, etc.

The declaration is as follows:

"Amended count, charging negligence, inexperience of plaintiff, and defendant's omission to give him proper instructions, etc.

"Also, in a plea of the case, for that the said defendant on the 9th day of April, 1888, was the owner, possessor, and operator of a certain saw-mill and fixtures, situate in the town of Shirley, in the county of Piscataquis, then and there used by him for the manufacture of laths and other lumber, which said mill and fixtures, and saws, machines, machinery, tools, and appliances placed therein, he was then and there bound to have and maintain in a safe, suitable, and well-constructed condition for the safety of his employes therein employed; but the said defendant, neglecting his duty in this behalf, did not then and there have and maintain said mill and fixtures, saws, machines, machinery, tools, and appliances in a safe, suitable, and well-constructed condition for the safety of his employes therein employed; but, on the contrary, said defendant did then and there have and maintain in said mill a lath-machine, composed of a circular saw, gearing, saw-bench, and sluice or passageway to carry off the sawdust and other refuse from said saw and mill, which said lath-machine was then and there, through the carelessness and negligence of the said defendant, defectively constructed and maintained, in this: that there were no sufficient guards to said saw to protect the person operating the same with due and reasonable care from coming in contact with it while in motion, and that said sluice or passage-way was so narrow, crooked, angular, and otherwise improperly and defectively constructed and maintained as to cause the sawdust and other refuse from said saw to clog in the mouth and other parts of said passage way, necessitating its frequent clearing out by the lath sawyer, which said clearing out could only be effectively and expeditiously done by a short stick or other implement in the hand of the lath sawyer, necessarily in close proximity to said saw in rapid motion.

"And the said plaintiff was then and there employed by said defendant at sawing laths with said lath-machine. And the said plaintiff was then and there in the employ of said defendant, operating said lath-machine, he (the said plaintiff) being inexperienced in such work, and ignorant of the said dangerous and defective condition of said saw and sluice or passage-way, of which said plaintiff's inexperience and ignorance the said defendant was fully aware; yet the said defendant then and there neglected to inform the said plaintiff of said dangerous and defective condition of said lath-machine, sluice, or passage-way, and of the danger of working at said unguarded saw in motion; and said defendant also then and there neglected to inform the said plaintiff of the danger of clearing out said sluice or passage-way when the same should become clogged by reason of the defective condition aforesaid of the same.

"And while the said plaintiff was so engaged in operating said lath-machine, viz., in removing with due and reasonable care on his part, by means of a short stick held in his right hand, the sawdust and other refuse that had clogged in the mouth of said sluice or passage-way by reason of its said defective construction and condition, his said right hand was then and there drawn onto said unguarded saw, and so badly cut and mangled that it had to be amputated at the wrist, which caused the said plaintiff great and long-continued mental and physical suffering, and put him to great expense for nursing, medicine, medical and surgical attendance, and permanently disabled hhim.

"Which said injury to said plaintiff was caused by reason of said defective condition of said lath-machine, sluice, or passage-way, and said plaintiff's said ignorance of the same, and his said inexperience, and the said neglect of the said defendant, having knowledge of the said ignorance and inexperience of said plaintiff, to acquaint said plaintiff with said defective condition of said lath-machine and said sluice or passage-way, and of the danger of working at said unguarded saw, and of the danger of clearing out said passage-way or sluice when the same should become clogged as aforesaid. "

Peregrine White and M. Langhlin, for plaintiff.

D. F. Davis and C. A. Bailey. for defendant.

VIRGIN, J. The gravamen of the plaintiffs complaint in his amended count is that he lost his hand, while running the defendant's lath-machine, on account of his inexperience and the defendant's omission to give him such information and instruction as were reasonably necessary and sufficient to enable him to appreciate the perils to which he would be exposed by using the faulty machinery in the course of his employment, and, with reasonable care on his part, to safely perform his work.

The plaintiff engaged to perform carpenter work upon the defendant's boarding-house, already erected, but unfinished; to commence as soon as the weather would permit. He had never run a circular saw or other machinery, but had tailed at a" rotary three days. Being short of hands in his mill, the defendant, while waiting for the weather to moderate so that work could be resumed upon his boarding-house, requested the plaintiff to work his lath-machine, which required two persons. After being shown for 15 to 30 minutes how to work it, the plaintiff, on March 27th, was put in charge of his new employment with another employe to do the tailing.

From two to six times a day, the sawdust accumulating at the bottom of the spout in the edge of the water under the mill, or sticking in the angle of the spout a short distance below the floor, filled it up, when it became necessary to clean it out by one going down and removing the obstructing accumulation at the lower end, and the other pushing the sawdust down the spout with a stick.

While being instructed in sawing, the spout did not happen to become clogged, and the plaintiff received no instruction as to the mode of clearing it.

During the first day or two, whenever the spout became choked, he stopped the saw and removed the sawdust in the manner described, which required some 15 minutes.

On April 9th, after having prosecuted his work 10 or 11 days without stopping the saw, and while pushing the sawdust down the spout with a stick some 2 feet in length, his hand which held the stick came in contact with the lower edge of the revolving saw under the saw-bench, which was about 22 inches above the mouth of the spout in the floor, and was so severely lacerated as to necessitate amputation at the wrist.

This is not the case of an experienced workman set to operating machinery, dangerous and demanding care, which, nevertheless, he fully understands, and voluntarily assumes the risk incident thereto. The usual danger of contact with such a dangerous implement as a circular saw in rapid motion is obvious to the eyes of all who have reached the years of discretion, when it is in plain sight. But the plaintiff's injury was not caused by the revolving saw above the bench, but by the 2 or 3 inches of it which protruded through and underneath it, and which was less than 2 feet from the floor, and so hidden from view by the length of the bench and the upper horizontal strip, 3 or 4 inches wide, which secured in place the legs of the bench, as not to be visible to the workman's eyes unless they were within 18 or 19 inches of the floor.

The inexperienced servant does not assume the risk of perils which he knows not of, and which are not called to his attention, but of such only as he knows, or by the exercise of ordinary care ought to know. Hull v. Hall, 78 Me. 114,3 Atl. Rep. 38.

We cannot decide, as matter of law, that the machinery under that saw-bench, which the plaintiff was obliged to use in the course of his employment, was in such a condition that a jury would not be authorized to find it unsafe and improper for a new beginner to be put to work upon without proper notice and reasonable instructions relating thereto.

Nor can we say, as matter of law, that a jury would not be warranted by the evidence in finding that contributory negligence was not imputable to the plaintiff. It would be absurd to suppose that the plaintiff recklessly destroyed his right hand. There is evidence that would warrant the finding that, if the spout had been constructed in accordance with the suggestion of the witness who had built 40 mills besides this one,—though he did not complete this; or if the machine had been boarded up as he suggested; or if, instead of either, a guard had extended down from the under side of the bench on each side of the saw,—then this injury could not have happened; nor, in all probability, would it have occurred if the defendant had not omitted to inform the plaintiff of that which he needed to know in order to be safe, (Sullivan v. Manufacturing Co., 113 Mass. 396,) and had notified him of the danger to be incurred so frequently each day in undertaking to aid a defective spout in carrying away the sawdust, which it would do without assistance if properly constructed.

The mere fact that the plaintiff shut down the saw the first two or three times does not conclusively prove that he appreciated the peril of not doing so. Numerous explanations suggest themselves, when taken in connection with the time required to stop, and set...