Glass v. Hazen Confectionery Co.
| Decision Date | 28 February 1912 |
| Citation | 97 N.E. 627,211 Mass. 99 |
| Parties | GLASS v. HAZEN CONFECTIONERY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The second part of defendant's sixth request was:
'The mere fact that the plaintiff could not tell the exact degree of danger, if the nature of it can be readily seen is not enough to require warning and instruction to a person of the plaintiff's intelligence.'
Defendant's last four requests were:
'(14) It appears on all the evidence that the plaintiff's regular occupation was to put the candies into trays, and the defendant had no reason to suppose that she would ever attempt to operate the machine, and was therefore under no duty to warn her of dangers incident to its operation.
'(15) Even if the plaintiff's testimony that McDonald left the machine and told her to see that the candy then on the machine went straight is believed, she cannot recover; for the proximate cause of the accident was the negligence of a fellow servant.
'(17) The defendant did not set the plaintiff to work upon the machine and is not liable for the act of a fellow servant of the plaintiff in directing her temporarily to act as his substitute.'
The court, after its charge was finished, read a request of plaintiff, and in doing so said:
'There is only one thing that I desire to add in order to make the ruling of the court technically right, and in reading this I do not want you to understand that I intend to call specific attention to any particular portion of the case, so as to give it an undue prominence.'
J Michelman and Sawyer, Hardy & Stone, for plaintiff.
Peabody, Arnold, Batchelder & Luther, for defendant.
DE COURCY, J.
The plaintiff, an employé of the defendant, was injured by the revolving knives of a caremel-cutting machine. The parts of the machine involved in the case are an endless canvass belt or apron revolving in a horizontal plane, two rolls or rollers which move the apron by friction, and the series of circular parallel knives rotating above the apron. When the power is applied the operator places on the moving apron a tray containing a batch of caramel, and the candy thus carried is cut into strips the first time and into squares the second time it passes beneath the knives. At the time of the accident the plaintiff was at the front end of the machine, and in attempting to make the candy go through the machine straight she pressed her hand down upon the tray whereupon the hand was thrown forward and under the knives.
The case was submitted to the jury on two common-law counts; the first alleging that the defendant set her at work upon dangerous machinery without giving her sufficient instruction, and the second alleging that she was set at work upon dangerous machinery that was in a defective condition. The case is here upon the defendant's exceptions to the refusal of the court to give certain rulings, also to portions of the charge and to the admission of certain evidence.
The legal duty owed by the defendant to the plaintiff with reference to the facts connected with the accident is determined by the preliminary issue: Was the plaintiff acting in the course of her employment when working on the front of the machine, or did she undertake this work as a volunteer, without the defendant's consent and in disregard of the warnings of others? Upon this question there was evidence to warrant the jury in finding that when the plaintiff applied to the defendant's superintendent for work she was referred to Mrs. Talbot, the 'forelady having charge of the girls'; that Mrs. Talbot had authority to order the plaintiff what to do; that she had taken the plaintiff to this machine, directed her to work with one McDonald who operated it, and said to the plaintiff, 'You should mind him and he will tell you what to do;' and that shortly before the accident, McDonald called her from her place at the back of the machine to the front and directed her to watch the candy as it went under the knives and to keep it straight. It is not our province to consider the weight of the evidence submitted by the defendant to contradict the plaintiff's version and which the jury were not bound to accept. Lindenbaum v. N. Y., N.H. & H. R. R., 197 Mass. 314, 323, 84 N.E. 129. The jury found, and were warranted by the evidence in finding, that the plaintiff was set to work at the front end of the machine by some person authorized by the defendant to place her there. Grace v. United Society Called Shakers, 203 Mass. 355, 89 N.E. 552. Cases like O'Brien v. Rideout, 161 Mass. 170, 36 N.E. 792, and Grebenstein v. Stone & Webster Engineering Corp., 205 Mass. 431, 91 N.E. 411, where the plaintiff was set to work in a dangerous place by an unauthorized fellow servant, do not apply.
When the defendant, through McDonald, placed the plaintiff at work on the front of this machine, it became its duty to give her suitable instructions. As it could not delegate this duty to anyone else it is liable to the plaintiff if her injury was due to the failure to give her such...
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