Fitzgerald v. Int'l Flax Twine Co.

• Decision Date: 01 May 1908
• Citation: 104 Minn. 138,116 N.W. 475
• Parties: FITZGERALD v. INTERNATIONAL FLAX TWINE CO.
• Court: Minnesota Supreme Court

104 Minn. 138

116 N.W. 475

FITZGERALD

v.INTERNATIONAL FLAX TWINE CO.

Supreme Court of Minnesota.

May 1, 1908.

Appeal from District Court, Ramsey County; Hascal R. Brill, Judge.

Action by Loriene Fitzgerald, by Stephan Brady, her guardian, against the International Flax Twine Company. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding verdict or for new trial, defendant appeals. Affirmed.

Elliott, J., dissenting.

Syllabus by the Court

The employment of an infant under the age of 16 years about dangerous machinery, the owner of which had not procured a certificate from the school superintendent or school board permitting such employment, as provided for in Laws 1907, p. 403, c. 299, is illegal. If injury results to an employé who is within such age from a failure properly to guard dangerous machinery at which she was required to work, these facts make a prima facie case for damages against the employer. Perry v. Tozer, 90 Minn. 431, 97 N. W. 137,101 Am. St. Rep. 416, followed and applied.

It is the duty of the master, for the protection especially of minors working about complicated and dangerous machinery, to make, publish, and enforce rules sufficiently clear and specific as to be capable of being intellingently understood and obeyed.

Where such instructions have a vital bearing on the rights of litigants, and are the subject of dispute in testimony, their existence and import are for the jury.

When the employé is at work in a dangerous or improper position which has no tendency in the ordinary course of nature and affairs to result in harm unless changed by the employer's act in putting a dangerous agency into motion, and when it is customary before so doing for the master to give warning so as to avoid injury, the questions whether the employer was actionably negligent in starting that agency into motion without the usual signal, and whether the servant was guilty of contributory negligence are for the jury.

A servant, especially a minor, engrossed in work, has a right to rely on customary signals, and is not bound to anticipate negligence on the master's part in failing to give them.

There are two essential elements of contributory negligence, want of ordinary care and causal connection between the act and the injury complained of. When the act and the injury are not known, by common experience, to be actually and usually in sequence, and the injury does not, according to the ordinary course of events and affairs, follow from the act, then the act and the injury are not sufficiently connected to make the act the proximate cause of the injury.

Plaintiff, a minor under 16 years of age was engaged in splicing a broken strand of flax on a machine at rest. The jury found that the foreman started the machine in motion. There was evidence that the warning usual before starting it in motion was not given. Plaintiff's wrist was caught between a bed of revolving needles and a bar. The jury returned a verdict of $4,000. It is held that defendant's negligence and plaintiff's contributory negligence were questions for the jury, that the foreman was not the fellow servant of the plaintiff in starting the machine, and that the verdict was not so excessive as to justify reversal or amendment. Durment & Moore (D. A. Orebaugh, of counsel), for appellant.

James R. Hickey, for respondent.

Plaintiff and respondent was employed by defendant and appellant to assist in the operation of spinning flax. In the room in which she was at work were 16 machines of different designs and make. The machine upon which respondent was injured was thirty feet long, four feet eight inches high, five feet wide, and consisted of some eight sections connected in an iron frame or bed. In the rear of the machines there was a row of buckets about three feet in depth. In each was a strand of flax. Each strand passed from the bucket over a roller in the rear of the machine which was about four feet above the floor. From this roller it passed over a steel plate, known as the ‘sliver bar’ or ‘plate,’ and between two steel guides or conductors about an inch or two apart just beyond the sliver bar or plate. From these guides the strands passed down between the guides and a revolving shaft immediately in front of them, then under this shaft, and up between it and another iron roller, known as the ‘retaining roller,’ then over this retaining roller and down between it and a revolving shaft immediately in front of it, and then in front of this revolving shaft to a bed of needles, known as the ‘gill bars.’ The operation of the needles carried the strands to the front end of the gill bars, where they passed over a ‘boss roller’ and under a roller known as a ‘drawing roller’ which pressed the flax down onto the boss roller. From this boss roller they passed to the spindle. This side of the machine was called the front side. On each side of the machine there was a rod about five feet two inches above the floor. It was admitted that the rod on the front of the machine would either stop or start the machine. The rod on the rear of the machine could certainly be used to stop the machine, and for present purposes it may be assumed that it could also be used to start the machine. The rollers over which the strands of flax passed after leaving the buckets or cans were so placed as to aid in keeping the operator from the machine. Between the rollers and the sliver bar, and some inches forward from the rollers, was a steel guard or shield which came down toward the floor a distance of 12 or 14 inches below the level of the sliver bar. This shut out entirely the working machinery from the operator at the back of the machine. The operation of all parts of the machine was essential to proper spinning. The flax could not be spun into twine by running it directly from the cans up over the rollers and down under the guard or shield and the sliver bar onto the needles. At the time of the accident the plaintiff was working at the back of one of the machines. It became necessary to adjust the tension part of the front of the machine. The attention of the foreman of the room was called to it. He came over, stopped the machine, at which plaintiff was hurt, and made the adjustment. This took some time. Plaintiff went to the rear of the machine, and saw one of the strands of flax break. While she was attempting to make the splice, the machine was started into motion. Plaintiff's hand was caught between the needles and the bar and injured.

The testimony concerning instructions as to the method and place of splicing parted strands of flax was inconsistent and contradictory. Plaintiff's testimony tended to show that she was splicing the broken strands in the same manner and at the same place as she had seen many other girls do. She testified at one time that both her hands were on top of the machine; at another time that she had her left hand down under the machine; and, finally, that she did not know where she had her hands. The construction of the machine, the location of her injury, and considerable direct testimony tend to show that she must have had her left hand down back of the shield and under the bar and her right hand on top of the machine. Defendant's witness, one Hipple, gave instructions, in part personally, and in part by directing another employé to teach plaintiff. He testified that it was his rule to tell all the girls entering the employment never to get underneath the machine while in motion or stopped. It did not, however, appear clearly that he had an independent recollection of having so instructed this plaintiff individually. Annie Smith, a witness for defendant, testified: ‘He (Hipple) told me to teach her (plaintiff) when she was there with me. He told me to teach her how to run the machine in the back (feed). That was all he said to me. He (Hipple) and plaintiff stood there talking awhile. I did not hear what they said.’ In explaining the method of operation she testified: ‘The girl behind, if she can get it, will splice it before the broken end reaches the roller. But if the broken end reaches the roller, then the girl behind stops the machine. That is the way I taught her to do. Q. How would it be spliced or fixed after she had stopped the machine? A. The girl in front will take the roller up and fix it under and put it on the needles and fix it in front. * * * Then the girl in front would get up and make the splice here, and put it under the machine. Q. How would she get it under this roller? A. She would put it with her hand under. Q. This girl in front? A. Yes, sir; she would lift that up, she would put in under there, then over that one you have got in your hand under the roller and over the needles.’ Counsel for defendant then got on top of the machine and adjusted the flax and rollers. ‘Q. That is the way you had to do it, was it? A. Yes, sir.’ Even the inference from the direct testimony of the witness which the jury might have drawn from the testimony was that somewhere about the middle of the machine was the end of the back girl's jurisdiction. On cross-examination, however, she testified: ‘In Making the connection from the back up here they (apparently the girl in the rear) were supposed to make the connection. If the machine stopped, and the end extended out here, and they could reach it, they were supposed to take and connect it. I instructed them all to that effect. If they could reach this fiber here anywhere in the back with the end out, you had the machine stopped, and they were supposed to go and connect it. And if they didn't, and if the end passed out and went through the rollers and out onto the needles, that the girl would have to go up in front of the machine and get busy with the knife and put that down. That is the way I understood they should be instructed. And that is the way I did instruct Loriene Fitzgerald with the rest of them.’

The machine used and exhibited, with reference...