Comeau v. C. C. Manuel & Sons Co.
| Citation | 84 Vt. 601,80 A. 51 |
| Court | United States State Supreme Court of Vermont |
| Decision Date | 27 May 1911 |
| Parties | COMEAU v. C. C. MANUEL & SONS CO. |
Exceptions from Franklin County Court; William H. Taylor, Judge.
Action by Alfred Comeau against the C. C. Manuel & Sons Company. Judgment for plaintiff, and defendant excepts. Affirmed.
Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
A. B. Rowley and W. B. Locklin, for plaintiff.
Gaylord F. Ladd and Elmer Johnson, for defendant.
This is an action of case for negligence. Trial was by jury and verdict and judgment were for the plaintiff. The defendant excepted.
Comeau, the plaintiff, was an employe of the defendant in a veneer mill at Richford, and was injured by one of its circular saws. The method of starting and stopping the saw was by shifting a belt from one pulley to another by means of a lever. The plaintiff had at different times worked in the mill in question, and had operated a jack straw machine and a tin cutting machine. For five or six days he ran a gang saw. The day before he was injured, he was set at work operating the circular saw referred to. He operated it on that day about five hours, and on the day of the injury, November 17, 1908, he had operated it about three hours when he received the injury. His only experience in running saws was what has been stated. It appeared that there was no danger from the gang saw, that the plaintiff was transferred from the gang saw to the circular saw because of his inexperience, and because in his operation of the gang saw he was heating it. Before the injury, the defendant's foreman, charged with the duty of keeping the saw in repair, was told by the plaintiff that he was a green hand, and that his experience in running saws was only what he had gained from running the gang saw. When the plaintiff went to work on the circular saw, he was shown how to push the lever to stop or start the saw; that is, it was started, stopped, and started again while the plaintiff was looking on. He stopped and started it himself a few times before he was injured. The evidence tended to show that on the day of the injury, and before it occurred, the foreman told the plaintiff to stop the saw and pick the "butt ends" out from under the saw; that the sawdust was flying in the plaintiff's face; that thereupon the plaintiff stopped the saw; that he knew it was at a standstill; that he then picked up a butt end and threw it in the waste basket, did the same thing a second time, reached his hand down a third time, when the saw started up and caused the injury. The evidence tended to show that there was nobody around who could have started up the saw; that the plaintiff did not know that the saw would start of itself; that his attention had never been called to any such possibility; and that he had no idea of it. It appeared that the saw had been in place about a year and a half, and that when installed it worked all right, and that the belt would stay where it was put. An expert witness called by the plaintiff testified, without contradiction and without objection, to the effect that, if such a saw after having been fully stopped started up of itself, the starting up would be due to some improper and defective condition in the machinery that could and should be discovered by a competent inspector: that if the starting up was because the shafting was out of line, or the pulleys out of order, or the belts stretched or otherwise faulty, the liability to start up would continue until the defect was remedied. The expert testified, under objection and exception, in answer to a hypothetical question, that if a saw set up and adjusted in the manner assumed in the question started up of itself after being fully stopped, that fact would Indicate a defect somewhere; that the defect might be in the lining of the shafting, in the lacing of the belt, in the stretching of the belt on one side more than on the other, or in the condition of the pulleys: that with proper equipments in the respects indicated in the question the saw would not start up of itself after being fully stopped.
HI The first ground of objection to this testimony was that the subject-matter was not proper for expert testimony. However, we think it was, and the defendant does not distinctly rely upon this ground of objection. The second ground of objection was that the part of the question descriptive of the machinery inquired about was not sufficiently definite to make the answer to the question of any value.
But the question, which need not be recited, was not open to this second objection. McKinstry v. Collins, 74 Vt. 147, 153. 52 AH. 438; State v. Doherty. 72 Vt. 381. 392, 48 AH. 658, 82 Am. St. Rep. 951; Johnson v. Castle, 63 Vt. 452, 21 AH. 534; State v. Woodbury, 67 Vt. 602. 32 AH. 495. The third objection was that there was no evidence in the case tending to show that the saw in question would start of itself, and that, therefore, the evidence called for and elicited was immaterial.
The evidence of the plaintiff himself as to how the saw started upon the occasion of the injury has already been referred to.
Homer Royce, who operated the saw for a period of about three months, ending about eight months before the accident, testified to the effect that he had stopped the saw and gone to work close by, and upon returning to his work at the saw had found it running, although in the meantime he had been close by, and had seen no one around the saw. Salime Ryea, who operated the saw during a period ending about three months before the accident, testified to the effect that he had sometimes stopped Hie saw, and, after holding the lever over some six or eight seconds, had gone away, and upon coming back had found the saw running; that this had happened eight or ten times that he was positive of. He testified that the foreman would say to him, "Why didn't you stop the saw?" and that every time the foreman said that he would reply that he had stopped the saw; that he did not know what started the saw; that after Mr. Warner, the foreman, spoke to him, he was more careful, and did not have so much trouble with it. Napoleon Gordon testified that he operated the saw, off and on, for a couple of months in the summer or spring before the accident, and that while so operating it he discovered something wrong about it; its starting up; that he stopped the saw to go at some other work, and, upon turning around, found the saw running; that he took particular notice of this a couple of times. Upon cross-examination this witness testified that his way was to throw the lever over, but that he never held the lever for the saw to stop dead still. William Gossley ran the saw for the five or six weeks just preceding the time when the plaintiff was set to work at it and was injured. Gossley explained the use of the lever in starting and stopping the saw, and testified that he discovered something wrong about it; that on three or four occasions, three that he remembered, he had stopped it, and, after going off and coming back, had found it running. He testified that he told the foreman that the saw "kept starting alone," that the foreman said that was because the witness did not hold the lever long enough, and that the witness replied that he did. Gossley testified that on the...
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