Gilbert v. Guild
| Decision Date | 29 June 1887 |
| Citation | 12 N.E. 368,144 Mass. 601 |
| Parties | GILBERT v. GUILD and another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.C. Ropes and W.L. Putnam, for plaintiff.
The evidence that the defendants were negligent in not providing proper and suitable machinery and appliances for safety should have been admitted. Wheeler v. Wason Manuf'g Co., 135 Mass. 294. The evidence was of a kind which is admissible; it was material. It may be assumed, for the purposes of this discussion, that the witness Carr would, if he had been allowed to answer the questions put to him, have testified (1)that these machines, as manufactured, are supplied with guards; (2) that he had always seen the guards in use on them; that is, it would have appeared that the defendant had omitted a precaution which has come to be regarded by the manufacturer as an essential part of the machine, as manufactured, and which was also in general use. This is not analogous to the cases in which it has been held that the plaintiff cannot put in evidence that it would have been easy to make the machine safer, or evidence of isolated instances of contrivances calculated to afford greater protection than existed in defendant's factory, or in that part of it where the accident happened. Such cases are Coombs v. New Bedford Cordage Co., 102 Mass. 572 581; Sullivan v. India Manuf'g Co., 113 Mass 396, 399; Rock v. Indian Orchard Mills, 142 Mass 522, 8 N.E. 401. But evidence of the usual and ordinary structure and condition of such machines as the defendant used, and of the safeguards ordinarily attached to them, is clearly admissible to show that the defendant did not exercise due care to supply suitable and proper machinery. Such evidence appears to be always admitted without question. Wheeler v. Wason Manuf'g Co., 135 Mass. 294; Smith v. New York & H.R. Co., 19 N.Y. 127; Greenleaf v. Illinois Cent.R.R., 29 Iowa, 14, at 41. See, also, Cass v. Boston & L.R.R., 14 Allen, 448; Lane v. Boston & A.R.R., 112 Mass. 455; Shattuck v. Rand, 142 Mass. 83, 7 N.E. 43.
The evidence was material. (a)It was admissible to support the first count of the declaration. There can be no question that this count stated a good cause of action. It is precisely the ground of recovery in Cayzer v. Taylor, 10 Gray, 274; Snow v. Housatonic R.R., 8 Allen, 441; Wheeler v. Wason Manuf'g Co., 135 Mass. 294; Lawless v. Connecticut River R.R., 136 Mass. 1; Joyce v. Worcester, 140 Mass. 245, 4 N.E. 565; Ferren v. Old Colony R.R., 143 Mass. 197, 9 N.E. 608, and many other cases. See Gilman v. Eastern R.R., 10 Allen, 233, 236; Same v. Same, 13 Allen, 433. Under this count, the plaintiff was entitled to prove that the defendants were negligent in not furnishing a suitable and proper machine. The plaintiff should have been allowed to prove his case under the first count of this declaration. It was admissible to support the third count. Williams v. Churchill, 137 Mass. 243, 244; Linch v. Sagamore Manuf'g Co., 143 Mass. 206, 9 N.E. 728. The evidence of the expert, Carr, should have been admitted. Mulcairns v. Janesville, 29 N.W. 565; Whitsett v. Chicago, R.I. & P.R.R., 25 N.W. 104. The evidence as to the obviousness of the danger should have been admitted. The machine not being itself in evidence, and not being by any means an object of common knowledge, any and all peculiarities connected with the mode of working it could be shown by persons familiar with such machines.
G.O. Shattuck and W.A. Munroe, for defendants.
Upon the exceptions, the only issues which appear to have been raised at the trial are (1) whether the plaintiff was properly instructed as to the use of the machine; (2) whether he was properly cautioned as to the dangers attending its use; and (3) whether he had sufficient intelligence to comprehend the situation, and assented to use the machine as it was.
As no exceptions were taken to the rulings, and no requests were presented for additional rulings, it must be presumed that the court gave proper instructions upon those points, and that the jury found that the plaintiff was properly instructed as to the use of the machine, and cautioned as to the dangers attending its use, and that he had sufficient intelligence to understand the situation, and consented to use the machine as it was. Upon the facts so found, the question whether the machine was more or less dangerous was immaterial. As all but one of the questions proposed by the plaintiff, and excluded by the court, were pertinent only to the inquiry whether the machine was more or less dangerous, they were properly excluded. Safford v. Grout, 120 Mass. 20, 26.
The first three of the above questions related solely to the construction of the machine. The defendants were entitled to a ruling that they were not bound in law to provide a guard for the knives. Rock v. Indian Orchard Mills, 142 Mass. 522, 528, 8 N.E. 401; Sullivan v. India Manuf'g Co., 113 Mass. 396; Coombs v. New Bedford Cordage Co., 102 Mass. 572, 588.
The evidence of the plaintiff that he was improperly instructed as to the use of the machine did not tend to show negligence on the part of the defendants in furnishing a machine of that construction. If, as shown, it was clearly a safe machine when properly used, evidence that machines had been made with further appliances; that Carr had seen them; that, in his opinion, this machine should have been so constructed,--was immaterial. The questions excluded were inadmissible, on the ground that the danger was apparent, and a risk of the business which the plaintiff assumed. The knives were open to view. He testified that he saw them. Like the plaintiff in Williams v. Churchill, 137 Mass. 243, he was 19 years of age, and took the risks of his employment. Pingree v. Leyland, 135 Mass. 398; Taylor v. Carew Manuf'g Co., 140 Mass. 150, 3 N.E. 21; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231; Joyce v. Worcester, 140 Mass. 245, 4 N.E. 565; Leary v. Boston & A.R.R., 139 Mass. 580, 2 N.E. 115; Moulton v. Gage, 138 Mass. 390; Linch v. Sagamore Manuf'g Co., 143 Mass. 206, 9 N.E. 728.
This court has held that evidence as to the construction of other machinery was immaterial. This excludes questions 1 and 2. Sullivan v. India Manuf'g Co., 113 Mass. 396, 400. The good or bad construction of other machines would not have affected the liability of the defendants as to this one. Such questions would tend to introduce collateral issues. Hill Manuf'g Co. v. Providence & N.Y.S. Co., 125 Mass. 292, 303.
The question numbered 3, if it had not been excluded by the foregoing consideration stated in paragraphs 1 and 2, would have been for the jury, and not for an expert. Amstein v. Gardner, 134 Mass. 5, 9; Buxton v. Somerset Potters' Works, 121 Mass. 446, 448. It was a question upon which the lay mind was capable of forming a judgment. It involved only matters of common knowledge. Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 472, 473, and cases cited. See Campbell v. Rickards, 5 Barn. & Adol. 840, 846; Raymond v. Lowell, 6 Cush. 524, 531; Nowell v. Wright, 3 Allen, 166, 170; Higgins v. Dewey, 107 Mass. 494; White v. Ballou, 8 Allen, 408; Mulry v. Mohawk Val. Ins. Co., 5 Gray, 541, 545; Luce v. Dorchester Ins. Co., 105 Mass. 297, 302; Lyman v. State Mut.F.Ins. Co., 14 Allen, 329.
The fourth question was objectionable in many ways. See Simmons v. New Bedford, V. & N.S. Co., 97 Mass. 361, 371; Com. v. Sturtivant, 117 Mass. 122. The rate of speed was certainly not the least important factor in the problem. Pingree v. Leyland, 135 Mass. 398.
OPINION
The ground of the plaintiff's right of action was that he was injured in performing dangerous work that he was put to do by the defendants. The machine was dangerous only because there was danger in working upon it, and, if it was in fact dangerous, it was immaterial that the danger might have been averted by appliances protecting against it. The defendants are not liable to the plaintiff because they used a...
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