Girard v. Grosvenordale Co.

• Decision Date: 20 July 1909
• Citation: 82 Conn. 271,73 A. 747
• Court: Connecticut Supreme Court
• Parties: GIRARD v. GROSVENORDALE CO.

73 A. 747

82 Conn. 271

GIRARD

v. GROSVENORDALE CO.

Supreme Court of Errors of Connecticut.

July 20, 1909.

Appeal from Superior Court, Windham County; George W. Wheeler, Judge.

Action by Ferdinand Girard against the Grosvenordale Company. From a judgment for plaintiff for $5,000 damages, defendant appeals. Reversed and remanded.

Charles E. Searls, for appellant.

Donald G. Perkins, for appellee.

THAYER, J. The plaintiff was employed as a scourer in the defendant's cotton mill in a room known as the new spinning room, and also in a smaller adjoining room. There was no dispute between the parties that, while he was in the small room on the day named in the complaint, he was struck by a falling counter shaft, and thereby injured as alleged in the complaint. The question upon the trial was whether the injury was caused by the negligence of the defendant, set up in the first count of the complaint, so as to give him a right of action against it. The negligence alleged is that the defendant, in operating the spinning frames in that room by power conveyed to them through belts connecting the same to sundry pulleys upon counter shafts attached to the ceiling of the room, which shafts received their power through belts from a main shaft, also attached to the ceiling of the room, which was driven by power from an engine, for a long time previous to the injury had been negligently running and operating those shafts at an excessive and high rate of speed, and had negligently failed to strongly and securely adjust and fasten the main shaft and its connections so as to withstand such excessive speed, and had failed to provide a suitable system for the examination and inspection of such shafting, pulleys, and other connections, and to examine and inspect the same; that through the negligence of the defendant one of the large pulleys on the main shaft was weak, defective, and cracked, which was known to the defendant, and on the day of the injury, while that shaft and pulley were being operated at a high and excessive speed, a large portion of the face of the pulley broke out and was separated from the pulley, which was seen and known by the defendant through its servants, yet it negligently suffered and allowed the shafting and pulley to continue to revolve at a high and excessive speed, and failed to shut off the power driving the shaft, although the pulley and shaft were, through the loss of the portion of the face of the pulley, out of balance, and pounding badly, whereby the main shaft became loosened and fell from its fastenings, and, revolving as it fell, tore down the counter shafting, which struck the plaintiff and caused his injuries. After the evidence was closed, the court instructed the jury that there was no evidence to support the second count, which charged negligent treatment of the plaintiff by a doctor employed by the defendant, and no evidence to support the allegations of negligence in the first count prior and up to the breaking of the large pulley, and that the only question of negligence arising in the case for their determination rested upon what took place after the breaking of the pulley, not what took place before, and that the plaintiff did not rely upon a violation of the duty of the defendant in failing to use reasonable care to furnish competent fellow servants or reasonably safe appliances and instrumentalities, but upon the violation of its duty to use reasonable care to furnish him a reasonably safe place in which to work.

The plaintiff claimed that just prior to the accident he had been cleaning a spinning frame in the new spinning room, and, having finished it, went in search of his overseer to obtain instructions. He first went to the overseer's office downstairs, and, not finding him there, went to the small spinning room, where the accident happened, to look for him. As he entered the room, he saw that the pulley was broken; that the belt was off; that the pulley was running unevenly, and with a beat or hammer, and that it was pulling on the hangers which fastened the shafting to the ceiling, and that the whole floor was shaking, and that if it continued any portion or all was liable to come down at any time. He passed into the room, and by voice and motions directed the help employed at the spinning frames to get away. He remained in the room for 10 or 12 minutes when the shafting fell.

The defendant, among other things, claimed that the plaintiff assumed the risk of his injury. The court, having properly instructed the jury as to what was essential to a finding that the plaintiff had assumed the risk, instructed them as follows: "If you find that this risk was assumed in the manner I have suggested, and as I have said, there can be no recovery, unless you find further that the defendant's negligence, subsequently arising after the broken pulley, caused the accident and injury to the plaintiff—of course the plaintiff's negligence did not contribute—and, second, unless you find that the plaintiff was there as he claims in the course of his duty, and while there, seeing the broken pulley, and anticipating danger to the girls at the frames, remained to get them away from danger, and while so engaged was injured through the defendant's negligence in not having used reasonable care to have the power shut off." The defendant assigns error upon this part of the charge. It is true, as the jury were told, that risks arising out of the master's negligence are not risks which are ordinarily incident to the servant's employment, and are not ordinarily assumed by him as a part of his contract of employment. But there are extraordinary risks from unsafe instrumentalities, or unsafe places to work, which may arise after the employment, through the master's neglect to properly operate, repair, or care for such instrumentalities or places, and these, when they and the danger arising from them are known to and appreciated by the servant, may be assumed by him. 1 Labatt on Master and Servant, p. 638, § 274; Carrigan v. Washburn & Moen Mfg. Co., 170 Mass. 80, 81, 48 N. E. 1079; Murphy v. Grand Trunk Ry. Co., 73 N. H. 18, 20, 53 Atl. 835; Conley v. Express Co., 87 Me. 352, 356, 32 Atl. 965; Hayden v. Smithville Mfg. Co., 29 Conn. 548, 558. Such assumption of the risk...