Cushman v. Cushman

• Decision Date: 18 October 1901
• Citation: 179 Mass. 601,61 N.E. 262
• Parties: CUSHMAN v. CUSHMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 601

61 N.E. 262

CUSHMAN v. CUSHMAN.

Supreme Judicial Court of Massachusetts, Hampshire.

October 18, 1901

COUNSEL

Wm G. Bassett and Edw. L. Shaw, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

LATHROP J.

The machine on which the plaintiff had been working shortly before the accident was known as a 'trimmer.' It had a loose and a fixed pulley, and a belt which communicated power from shafting about eight feet above the floor. On this shafting was a fixed pulley. About four months before the accident the shafting had been lengthened to the left as one faced the machine, and where the old and new shafting came together there was a collar, consisting of two pieces of metal fastened together by set screws. The plaintiff testified that he was there when the change was made, and knew that there was a coupling and a pulley there. It was customary, at the close of work for the day, to take the belt off the shafting; and it was while the plaintiff was engaged in this work that the belt, which was a little wider than the space between the collar and the fixed pulley above, was caught in this space and the plaintiff, who was standing on the floor, in some way got his hand caught, and he was carried up to the shafting and his hand and arm were injured. The plaintiff was a man about 67 years of age. He was not a machinist by trade, but had worked in the mill for 40 years, substantially on the same kind of work,--making leather board, and button board, since that came in, about 12 years before. During these 12 years he had been a finisher of button board, and this work required the use of calendar rolls and the trimming machine. For 12 or 13 years he was foreman of the shop, but for some years before the accident he had not been foreman, owing to the fact that during this time the defendant's son was acting in that capacity.

It would be difficult to find a case where a man had had more experience than the plaintiff. He had worked for the defendant's father for 10 years before the son succeeded him. He had worked for the son 30 years. So far as the running of machinery was concerned, he undoubtedly knew as much as any one, and had no need of any instructions. Stuart v. Railway Co., 163 Mass. 391, 40 N.E. 180, and cases cited. Ruchinsky v. French, 168 Mass. 68, 46 N.E. 417; Wilson v. Cotton Mills, 169 Mass. 67, 71, 47 N.E. 506; Lowcock v. Paper Co., 169 Mass. 313, 47 N.E. 1000. We may dismiss, therefore, the idea that the plaintiff has any ground of recovery based upon the need of instructions.

There is nothing in the case to show any defect in the machine or in the belt. The only point on which the plaintiff relies is that the space between the collar and the fixed pulley was not large enough to admit the belt without danger of its being caught; but he does not rely on this, in the brief of his learned counsel, as a distinct proposition, but only as coupled with the proposition that he should have been warned of the danger. As the question is, however, presented by the original declarating, we proceed to consider it. It appears from the plaintiff's testimony that before the shafting was lengthened his practice was to get the belt off the fixed pulley on the shafting to the left; that,...