Dolphin v. Plumley

• Decision Date: 28 February 1900
• Citation: Dolphin v. Plumley, 175 Mass. 304, 56 N. E. 281 (Mass. 1900)
• Parties: DOLPHIN v. PLUMLEY et al.
• Court: Supreme Judicial Court of Massachusetts

175 Mass. 304

56 N.E. 281

DOLPHIN v. PLUMLEY et al.

Supreme Judicial Court of Massachusetts, Hampden.

February 28, 1900

COUNSEL

E. J. Tierney, for plaintiff.

H. W Ely and A. S. Kueil, for defendants.

OPINION

LATHROP J.

When this case was last before us(167 Mass. 167, 45 N.E. 87) it was on the plaintiff's evidence alone.We were then of opinion that the case should have been submitted to the jury.Since then the case has been tried again, the jury returned a verdict for the defendants, and the case comes before us on the plaintiff's exceptions.These disclose that on nearly every point the facts were in dispute.According to the plaintiff's evidence, he was injured while passing over a movable platform or apron, one purpose of which was to prevent splinters and chips thrown off by a circular saw from falling below and clogging the machinery, and while so crossing the apron it sank down a little, owing to its not having been properly replaced by one of the defendants.He fell, and his hand struck the saw.According to the defendants' evidence, the plaintiff did not step upon the apron, but was attempting to assist one of the defendants who was putting a belt upon a pulley, and in doing so his left hand came in contact with the saw, and it was no part of his duty to assist in putting on the belt.In our former opinion it was said, speaking of the plaintiff's testimony: 'To pass in such close proximity to the saw was obviously dangerous, and, if other ways had been provided, we should hesitate to reverse the ruling below.'Accordingly, at the last trial there was evidence introduced that there were other ways,--one inside the mill between one of the side walls and the carriage which carried the log, and the other by going outside of the mill.

1.The first exception of the plaintiff relates to the admission of the testimony of certain witnesses for the defendants as to the inside passage.The plaintiff had testified that this was not at any time a safe and reasonably convenient passageway for him or any one else to use, because of its narrowness and other conditions, and that no one could go through there without being injured.The defendant introduced several witnesses, who testified that they experienced no difficulty in going through this passageway, and that the passageway was used.Some of these witnesses were not present while the plaintiff was employed in the mill, and the plaintiff contends that the inquiry should have been limited to those who were there when the plaintiff was.The answer to this contention is the following statement in the bill of exceptions: 'There was no evidence that there had been any change in the general conditions and character of said space from the time the mill machinery was placed in the building to and after the time of the plaintiff's injury.'There was also evidence that the log on the carriage when the plaintiff was injured was not an unusually large one.Nor could the evidence admitted be said to be too remote in point of time.The mill was constructed in the fall of 1895, and put in operation in the fall or early in December of that year.The plaintiff assisted in setting the carriage of the mill, worked there after it was in operation, and again from the second week in January to the time of his injury, in March, 1896.

2.In respect to the platform by the saw, the plaintiff requested the judge to instruct the jury: 'The testimony of witnesses that in their opinion this platform was not a proper means of passage, if of any bearing on the case, is merely on the question whether this platform was in fact used as a passageway.'This request seems to be based on this question and answer: A witness was asked, 'Is it proper within your knowledge and experience, for these two screens...