Clavin v. William Tinkham Co.

• Decision Date: 06 July 1909
• Citation: 73 A. 392,29 R.I. 599
• Parties: CLAVIN v. WILLIAM TINKHAM CO.
• Court: Rhode Island Supreme Court

73 A. 392

29 R.I. 599

CLAVIN

v. WILLIAM TINKHAM CO.

Supreme Court of Rhode Island.

July 6, 1909.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Action by Catherine Clavin against the William Tinkham Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for judgment upon verdict.

The fifth exception was to the refusal of the court to charge the jury, as requested by defendant, that this case came practically within the doctrine of the furnishing of materials by the master, and the selection and use thereof by the servants, or those in charge of the servants and workmen in the employment of the master.

John W. Hogan, for plaintiff.

Tillinghast & Murdock, for defendant.

BLODGETT, J. The case at bar is thus stated on the defendant's brief:

This is an action of trespass on the case for negligence, brought by Catherine Clavin against the William Tinkham Company, a corporation. The William Tinkham Company is engaged in the manufacture of worsted and woolen goods, having a mill at Harrisville. The plaintiff, a weaver, was on the 19th day of June, 1906, operating a loom in the defendant's mill. On that day certain minor repairs were being made by a loom fixer upon a loom in the weaving room, where the plaintiff was working. The loom which was being repaired was the one adjacent to the plaintiff's loom, and was operated by one San Souci. While the work of repairing was in progress, she took the seat at San Souci's loom, and while in this position was injured by a shuttle which flew out of San Souci's loom. A loom fixer was called upon to tighten the picking cam, which is fastened to a shaft running underneath the loom. To get at the picking cam it was necessary to lift the warp beam out of its position and rest it on the framework of the loom. The loom fixer, having made the adjustment, was lowering the warp beam into its position with the assistance of San Souci when he accidentally touched the shipper which engaged the friction clutch and set the loom in motion. The shed through which the shuttle passed being loosened by reason of the warp beam not being in position, the shuttle flew from the loom and caused the injury to the plaintiff. As a result of this injury, the plaintiff lost an eye and claims to have suffered other injuries. A demurrer to the plaintiff's declaration was heard before Mr. Justice Stearns, was overruled, and the defendant's exception was noted thereto.

This case was tried before Mr. Justice Stearns and a jury in the superior court at Providence, on December 8, 9, and 10, 1908, and a verdict returned therein in favor of the plaintiff for the sum of $4,200. Within seven days after the rendition of said verdict the defendant filed its notice of intention to prosecute a bill of exceptions, and said bill of exceptions was duly filed, and notice thereof duly given to the plaintiff, and the case is now before this court on defendant's bill of exceptions. The bill of exceptions alleges six grounds of exceptions as follows: (1) To the decision of Justice Stearns, entered February 25, 1908, overruling the defendant's demurrer to the declaration filed in said cause, as appears of record. (2) To the refusal of the trial justice to direct a verdict for the defendant, as appears on page 150 of the transcript of testimony in said case. (3) To the charge of the trial justice at the trial of said cause that the loom fixer, in fixing the loom in question, was attending to a duty which the employer owed to the employe, and that he was a vice principal, as appears in the judge's charge on page 158 of the said transcript. (4) To a certain ruling of said justice in refusing to charge the jury as requested by the defendant, as shown on star page 162 of said transcript, designated "Exception 1." (5) To a certain ruling of said justice in refusing to charge the jury as requested by the defendant, as appears on star page 162 of the said transcript, designated "Exception 2." (6) To the refusal of the said justice to charge the jury as requested by defendant, as appears on star page 163 of said transcript.

The trial justice instructed the jury, without objection, that "there are several counts in the declaration, which is the statement of the plaintiff's case, and the only count on which you can find a verdict is the last count," thus eliminating all questions arising under any other counts in the declaration. The charge of the trial justice on page 158, to which exception is taken, is as follows: "I charge you, gentlemen, that under the circumstances here that the duty, that the fixing of that loom, that the loom fixer was attending to a duty, which the employer owed to the employe." The instruction was correct. It is in substance the converse of the contention of the defendant in his second ground of demurrer to the third count, "That it appears by said count that the negligence of the loom fixer, if any, was the negligence of a fellow servant," which contention the trial court properly overruled. The cause of the accident in question was the neglect of the loom fixer to remove the belt while the necessary adjustments were being made, so that an accidental moving of the shipper could not prematurely start the loom, or the neglect by the loom fixer to remove the shuttle, so that if the loom were prematurely started the shuttle would not fly from its place and cause damage.

In Crandall v. Stafford Mfg. Co., 24 R. I. 555, 556, 54 Atl. 53, it was said by this court: "The witness John S. Grant, who erected the 'hanger' upon which the pulley shaft was placed, was not, in the doing of that work, a fellow servant with the plaintiff. The 'hanger' was part of an appliance in the mill. It was put up under the oversight of the superintendent, and was intended to be used in facilitating the doing of certain work which the defendant corporation was carrying on. The duty of properly constructing and fastening said appliance, therefore, was clearly one which the law devolved upon the defendant as master, and it could not divest itself of this duty by devolving it upon another. As said by this court in Mulvey v. R. I. Locomotive Works, 14 R. I. 204: 'It is the duty of a master, who furnishes machinery for his servants to operate or work about, to see to it that it is reasonably safe. He cannot divest himself of this duty by devolving it on others, and, if he does devolve it...