Geno v. Fall Mountain Paper Co.

• Decision Date: 05 December 1895
• Citation: 68 Vt. 568,35 A. 475
• Parties: GENO v. FALL MOUNTAIN PAPER CO.
• Court: Vermont Supreme Court

35 A. 475

68 Vt. 568

GENO

v. FALL MOUNTAIN PAPER CO.

Supreme Court of Vermont. Rutland.

Dec. 5, 1895.

Exceptions from Rutland county court; Start, Judge.

Action on the case by Edward H. Geno against the Fall Mountain Paper Company for personal injuries. Verdict and judgment for plaintiff. Defendant excepts. Affirmed.

The defendant was the proprietor of a pulp mill, and the plaintiff was employed by it at work upon certain screens in said mill at the time he was injured. His evidence tended to show that he had been engaged by the defendant something like a week before the injury; that he was 16 years of age; that he had no knowledge of the operation of the machinery which he was required to run, nor of any machinery, and that the defendant knew this when he employed him; that he received no instruction whatever as to the oiling of the countershaft from which his machine was driven, and which was fastened to the ceiling, some 8 or 10 feet above the floor; that upon the night of the injury he was instructed by the foreman of the mill to oil this countershaft; that he attempted to do so by walking up over the screens, and by reaching with his hand to the bearings; that while attempting to do this the sleeve of his frock was caught upon a projecting set screw, and he was drawn violently around the shaft and seriously injured. The plaintiff claimed that the defendant was negligent in two respects: First, in using a projecting set screw; and, second, in having given him no instruction as to the oiling of this shaft The set screw in question projected about three-fourths of an inch from the collar, and the evidence of the plaintiff tended to show that the set screw ought to have been countersunk so that the bead would be flush with the surface of the collar. He was allowed to show, under the exception of the defendant, by witness McEvoy upon direct examination, and by the witness Hall upon cross-examination, that the expense of replacing the projecting set screw with one properly countersunk would be trifling. The defendant claimed that the projecting set screw was one in ordinary use in the vicinity, and that the plaintiff, when he attempted to oil the countershaft by walking up over the screens, went into a place of obvious danger, and could not for this reason, recover. The question raised by the exceptions of the defendant to the charge of the court upon these two points fully appears in the opinion.

C. A. Prouty and Butler & Moloney, for plaintiff.

L. M. Reed and J. C. Baker, for defendant.

TYLER, J. The defendant's counsel requested the court to instruct the jury as follows: "If the jury shall find that the plaintiff was caught upon a set screw, notwithstanding this fact, if at the time of the accident said set screw was an approved appliance then in common use in that vicinity for the purpose for which it was used, then the defendant was not chargeable with any neglect in this respect" "If the set screw with the projecting head was, the common and ordinary way of attaching collars to shafting in the manufactories of this vicinity, that method was reasonably safe, in the eyes of the law. It was not enough that some persons regarded a countersunk set screw as a valuable safeguard, nor can the jury set up its judgment against the general custom of the business. The test, in law, is general use." "The employer is not bound to use the newest and best appliances for his employe, but he performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to style of implements, method of attachment, or nature and mode of performance of any work, 'reasonably safe' means safe according to the usages, habits, and ordinary risks of business." The court declined to so charge, but did charge as follows: "It is claimed that the defendant was negligent in having this projecting set screw, in view of the circumstances in which the plaintiff was required to oil the shafting, in the circumstances which the plaintiff claims he was directed to do it." "The plaintiff seeks to recover for the negligence of the defendant. No recovery can be had for the damages suffered by the plaintiff, unless they were caused by the wrongful neglect or default of the defendant Negligence is the failure on the part of the defendant to perform a legal duty that it owed to the plaintiff. The duty incumbent on the defendant as the employer of the plaintiff, was to use the diligence and care of a prudent man to furnish the plaintiff a reasonably safe place to work, and reasonably safe machinery, tools, and appliances with which to do his work. If the defendant, in the use of this set screw in the place where it was used, was in the exercise of the care and prudence that prudent men are accustomed to exercise in like circumstances, then the defendant is not liable on account of negligence in using this set screw in that place, and for the purpose it did use it. The employer is not bound to use the newest and best appliances for his employes, but he performs his duty when he furnishes those of ordinary character, and reasonably safe; and the former is the test of the latter, for in regard to style of implements, methods of attachment or nature and mode of performance of any work, 'reasonably safe' being or meaning safe according to the ordinary risks of the business." "Now, it is claimed that it was negligence for the defendant to have this projecting set screw in a place such as is disclosed by the evidence here, projecting from the collar upon this countershaft. It is claimed that the defendant was negligent in having that set screw there, projecting in the manner it did, in view of the claim of the plaintiff that this boy had not been instructed in respect of that danger; in view of the claim that he was in fact sent up there to oil the bearing of the countershaft" "Was the defendant negligent in having this set screw projecting in the manner that it did, in view of the facts as you find them in respect to the direction that was given to the plaintiff about oiling the bearings upon that countershaft? In having this projecting set screw, in the circumstances, was the defendant in the exercise of that care and prudence that prudent men are accustomed to exercise in like circumstances? This is a question for you to determine, in connection with what the plaintiff was required to do with respect to the countershaft by the authority of the defendant, or by the authority that the plaintiff believed, from the conduct of the defendant, was the authority of the defendant Was the defendant negligent in that respect and did this injury come to the plaintiff by reason of that neglect, while he was in the exercise of care and prudence on his part, and without any contributory negligence on his part? If the defendant was thus negligent and this injury was the result of that negligence, and without any contributory negligence on the part of the plaintiff, then the plaintiff is entitled to recover. If the defendant was not negligent; If, in this respect, it was in the exercise of the care and prudence that prudent men exercise in like circumstances,—then the plaintiff cannot recover by reason of the negligence, in the circumstances disclosed by the evidence." "If the jury should find that the plaintiff was caught upon a set screw, notwithstanding the fact that at the time of the accident said set screw was such a set screw and appliance as a prudent man would use in like circumstances for the purpose for which it was used, then the defendant is not chargeable with any neglect in this respect"

The requests were framed in accordance with the doctrine of several cases that are cited by the defendant which we will briefly state.

In Manufacturing Co. v. McCormick, 118 Pa. St. 519, 12 Atl. 273, the plaintiff, who was employed by the defendant as...