Fitzgerald v. International Flax Twine Co.

• Citation: 116 N.W. 475,104 Minn. 138
• Decision Date: 01 May 1908
• Docket Number: 15,447 - (226) [2]
• Parties: LORIENE FITZGERALD v. INTERNATIONAL FLAX TWINE COMPANY
• Court: Supreme Court of Minnesota (US)

116 N.W. 475

104 Minn. 138

LORIENE FITZGERALD v. INTERNATIONAL FLAX TWINE COMPANY

Nos. 15,447 - (226) ^[2]

Supreme Court of Minnesota

May 1, 1908

Action in the district court for Ramsey county to recover $15,000 damages for personal injuries. The case was tried before Brill, J., and a jury which returned a verdict in favor of plaintiff for $4,000. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.

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 sixteen 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 twelve or fourteen 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 employee 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. "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 in 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. * * * 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? Yes, sir. And if they didn't, and if the end passed out and went through the roller 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 to which this testimony must be applied, was not the one by which plaintiff had been injured. This was not defendant's fault. The original had been sold and taken to Chicago. The two machines were not identical. According to defendant's witnesses, the original machine was two inches wider, and the distance between the retaining roller and the boss roller was four inches greater, than in the one exhibited. The clearance between the pins and the roller varied in the different machines from one-eighth to five-eighths of an inch. Plaintiff repeatedly testified that on the original machine there was a considerable open space near the middle roller which did not appear in the one exhibited.

The trial court charged concerning the employment of plaintiff, a minor under the age of sixteen years, as will be hereinafter set forth. It also submitted to the jury two questions of defendant's negligence. "It is claimed that the plaintiff was of tender years and inexperienced, that the machinery was dangerous, and that she was not sufficiently instructed in regard to the use of the machine for the protection of herself from danger; and it is claimed upon her part that the defendant failed in its duty in this regard. And the second ground claimed is that the machine was started by the foreman of the defendant when the plaintiff was in a position of danger, and that that was a negligent act." In connection with the second charge, the court also submitted the question whether it was the custom, when the machine was stopped, not to start it again without giving warning to the operator at the rear of the machine. He also charged that, if the plaintiff was sixteen years of age or under, then the happening of the accident, in connection with that fact, would be prima facie evidence of negligence on the part of the defendant. Plaintiff brought this action to recover for the injuries.

The jury returned a verdict for $4,000 and the following special verdicts:

"(1) Q. Did the plaintiff put her hand under the back of the guard or shield while the machine was in motion? A. No.

"(2) Q. Did the foreman, Struck, start the machine at the time plaintiff received her injury? A. Yes.

"(3) Q. Was the plaintiff, Loriene Fitzgerald, sixteen years of age at the time she was injured? A. No."

This appeal was taken from the order of the court denying the defendant's alternative motion for judgment notwithstanding the verdict or for a new trial.

SYLLABUS

Employment of Minor Without School Certificate.

The employment of an infant under the age of sixteen years about dangerous machinery, the owner of which had not procured a certificate from the school superintendent or school board permitting such employment, as...