Dettering v. Levy
| Decision Date | 10 January 1911 |
| Citation | 79 A. 476,114 Md. 273 |
| Parties | DETTERING v. LEVY et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Thomas Ireland Elliott, Judge.
Action by Matilda Dettering against Michael S. Levy and another. From a judgment for defendants, plaintiff appeals. Reversed and new trial awarded.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.
Clarence A. Tucker and Joseph N. Ulman, for appellant.
Vernon Cook and Charles Markell, for appellees.
The appellees conduct a factory in the city of Baltimore for the purpose of manufacturing straw hats, and the appellant was employed by them, and had been for 14 years prior to the accident complained of, as a sewing machine operator. In the room in which she worked there were 8 rows of tables which were 50 feet long, 46 inches wide, and 2 feet 6 inches high. There are on each table 34 sewing machines which are located on the 2 sides of the table, 40 inches apart, and almost directly opposite each other. They are driven by power supplied by shafting from below, which is 1 3/16 inches in diameter and revolves at the rate of 450 revolutions per minute. It runs the length of the table, directly in the center, 8 inches from the floor. There are on the shaft pulleys or collections of wheels consisting of a disc wheel 12 inches in diameter, clamped permanently to the shaft and revolving with it, a leather friction wheel 5 inches in diameter, which runs against the disc wheel when the sewing machine is in operation, and back of the leather friction wheel there is a grooved wheel 7 inches in diameter which has 6 spokes and carries a one-quarter inch leather belt, which connects with the sewing machine on the table. There is a treadle which the operator presses on to start her machine thereby bringing the leather friction wheel in contact with the disc wheel. When the machine is not in use, the leather belt is not in motion; but the pulley or disc wheel on the main shaft is always in motion when the shaft is. The treadle is 12 or 14 inches long. Each operator has at her place a needle wrench, which is used for changing the machine needle when the character of the work to be done is changed, and also a screw-driver, an oil can, and a measure, which are kept in the machine drawer each one has. On November 12, 1908, the appellant wanted to change to coarse work and had to change her needle. She could not find her needle wrench and got down on the floor to look for it, and, not finding it, got up again and looked in her machine drawer. She then got down again; was on her hands and knees and was looking under the treadle. The front edge of the treadle is directly under the front edge of the table. As she looked for the needle wrench, her hair caught on the shaft, and her entire scalp was torn off. The testimony tends to show that her hair caught on the smooth shafting about 18 inches from the pulleys connecting it with her machine and 22 inches from the pulleys connecting the shaft with the machine on the opposite side of the table. The shafting was not covered or in any way protected between the two pulleys, a distance of 40 inches.
During the trial ten exceptions were taken to rulings on the evidence, and the eleventh was to the ruling of the court in granting the defendants' second prayer offered at the conclusion of the plaintiff's testimony. The defendants offered a prayer asking the court to instruct the jury that from the uncontradicted evidence the plaintiff by her own negligence directly contributed to the happening of the injuries, and therefore their verdict must be for the defendants, and a second prayer that the plaintiff had offered no evidence legally sufficient to show any neglect on the part of the defendants as to any duty owing by them to the plaintiff, which in any way contributed to the happening of the injuries, and therefore their verdict must be in favor of the defendants. The court granted the second prayer, but did not act upon the first, and a verdict was accordingly rendered for the defendants, on which a judgment was entered, and this appeal was taken.
We will first consider the eleventh exception, and in that connection will refer to some of the others, which have relation to it. We are not prepared to say that there was no evidence legally sufficient to show any neglect on the part of the defendants as to any duty owing by them to the plaintiff which in any way contributed to the happening of the injuries for which this suit was brought. The plaintiff was one of a large number of women and girls who were employed in that factory as sewing machine operators, and there were 34 women and girls at the table where the plaintiff was, under which the uncovered shafting was rapidly revolving. As it was less than 23 inches from the edge of the table and only 8 inches from the floor, it must have been near the skirts of the operatives when sitting in the position necessary to use the treadles--at least sufficiently near to make it dangerous if the skirt of one of them was moved 8 or 10 inches toward the shaft. The testimony shows that the skirts of some of them had at different times been caught and torn off, and at least one of the operatives was seriously injured; in the language of the plaintiff, "It made a wreck out of her." Perhaps there was but little danger, if any, if the operatives always remained in the position they usually occupied; but even then a current of air might carry a skirt made of light fabric the short distance necessary to reach the shaft, a fright or some sudden movement might cause an operative to unconsciously throw her feet forward a few inches, not to speak of the fact that a fatigued girl or one with her mind on her work might thoughtlessly stretch her weary limbs beyond the safety point and her skirt be caught. Or if it be true, as the evidence shows, that the small tools used by the girls were constantly being jarred off the table from the motion of the machinery, the operatives were liable to get into positions attended with danger from a rapidly revolving shaft situated as this was. It will not do to say that, if all of them always used due care, there was no danger when engaged at their work, for, even if that be conceded, we know by experience and observation that there is no human being who always and under all conditions will do what they would ordinarily do if they remembered they were near dangerous places or articles.
It would therefore seem that when an employer, who is under legal obligation to furnish his employés with a reasonably safe place to work in, prepares such place for women and girls, all of whom cannot be experienced, he ought to provide against such dangers as we have spoken of, if it can be reasonably done, and he has reason to believe that they do actually exist. In this instance the defendants were not only presumed to know what might happen, but they knew before the plaintiff was injured that a number of times there were accidents by reason of this unprotected shafting. There is nothing in the testimony to show that it would be impracticable to cover the shafting between the pulleys, and there is nothing to show that it is not customary to protect it when situated as this is. In the absence of some good reason for not covering it, it does not seem to be so unreasonable or so unnecessary for the protection of the operatives to require it, as to authorize the court to declare, as a matter of law, that the defendants were not negligent in failing to do so. Ordinary men can at least differ as to that. A rapidly revolving shaft is undoubtedly likely to do injury if one comes in contact with it, and whether the location of such a shaft, when unguarded, is dangerous, may depend on a variety of circumstances.
The most important inquiry in determining that question is: Are the operatives while in the discharge of their duties likely to come in such close contact with it as to produce injury? It was not pretended in Gleason v. Suskin, 110 Md. 137, 72 A. 1034, that it was not negligence on the part of the defendants to leave the piece of the shaft which caused that injury, unprotected. On the contrary, recovery was denied the plaintiff in that case on the ground that she was guilty of contributory negligence, which presupposes negligence on the part of the defendant.
In the only other case of a suit for damages sustained by reason of injuries caused by uncovered revolving shafting in this state (American Tobacco Co. v. Stickling, 88 Md. 500, 41 A. 1083, 69 L. R. A. 909), we said: It is true that in that case the plaintiff was a girl 17 years of age, who was inexperienced in machinery and had never been warned of the danger as she encountered, and that she did not know that there was such danger. We will refer to that branch of the case more particularly under another head; but there is certainly testimony tending to show that there was danger from this shaft, located as it was, and such as one even of the plaintiff's experience might not be aware.
As shown by the fourth and sixth bills of exception, the plaintiff attempted to prove that it was...
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