Langlois v. Dunn Worsted Mills

• Decision Date: 15 February 1904
• Citation: 25 R.I. 645,57 A. 910
• Parties: LANGLOIS v. DUNN WORSTED MILLS.
• Court: Rhode Island Supreme Court

57 A. 910

25 R.I. 645

LANGLOIS

v. DUNN WORSTED MILLS.

Supreme Court of Rhode Island.

Feb. 15, 1904.

Case for negligence by Hector Langlois against the Dunn Worsted Mills. On demurrer to the declaration. Demurrer sustained.

Argued before STINESS, C. J., and DOUGLAS and BLODGETT, JJ.

McFee & Greene, for plaintiff.

Comstock & Gardner, for defendant.

STINESS, C. J. The first, second, and fourth counts of the declaration are demurred to. The first two counts set forth, in substance, that the plaintiff was employed to work on a machine which was defective for want of a lever to stop it when in motion; that the plaintiff was 14 years of age, of immature intelligence and feeble memory; that it suddenly became necessary to put the geared wheel out of gear; that he "momentarily forgot the absence of said lever" and in haste reached for the place where the lever should have been, and his hand became caught in the geared wheels.

We think the first two counts are demurrable on several grounds. The proximate cause of the injury was not the defect in the machine. If the plaintiff had put his hand where the lever should have been, he would not have been injured, as the lever could not have been in the gears. The only possible inference from the declaration is that, without looking, the plaintiff hastily put his hand out where the lever should have been, and put it beyond that place into the gears. He must have done this without looking to see where he was putting his hand. So far as appears, he might have suffered the same injury had the lever been in place. He might have put his hand beyond the lever into the gears had the lever been there in plain sight The declaration therefore does not show that the absence of the lever, the only defect complained of as negligence, was the proximate cause of the injury. The declaration also implies that the plaintiff knew of the absence of the lever, because it alleges that he momentarily forgot it; and one can only forget what he knows or has known. It therefore shows contributory negligence on the part of the plaintiff. Forgetfulness does not excuse want of due care. It is probably the most prolific cause of negligence. Hence it is stated in Beach on Contrib. Neg. (3d Ed.) § 47: "Where one knowing the danger temporarily forgets it and in consequence suffers, his forgetfulness will not avail him as an excuse. What he knows he must remember at his peril, and not to remember is contributory negligence if it occasions the injury." The doctrine of contributory negligence would be easily disposed of if the plaintiff has only to say, "I forgot" In Bruker v. Covington, 69 Ind. 33, 35 Am. Rep. 202, an instruction was sustained that, if a plaintiff knew that a cellar way opened into a sidewalk, he must be treated as having taken the risk upon himself; "and this, too, although at the time the fact of the existence of the opening was not present to the plaintiff's mind." In Baltimore R. R. v. Whitacre, 35 Ohio St. 627, the court said: "It is no excuse to a plaintiff seeking to recover for injuries received under such circumstances that he was absent-minded, and did not look to see or stop to hear the cars." Railroad v. Hewitt 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32.

While knowledge of a defect is not conclusive evidence of contributory negligence in all cases, yet when it appears the plaintiff's case must be considered in reference to his knowledge, and something must appear to excuse or rebut the presumed assumption of the risk. Accordingly the plaintiff seeks to set out an emergency in alleging "that in tending and running said machine it then and there suddenly and unexpectedly to the plaintiff became necessary for the plaintiff immediately to put said geared wheel out of gear as aforesaid; that the plaintiff, startled by said sudden and unexpected occurrence, momentarily forgot the absence of said lever, and in his haste reached for the place where the laver should have been, intending therewith to throw said wheel out of gear; and exerted himself and made the motions to that end which would have been proper, safe, and necessary had said lever been in place; that, owing to the absence of said lever, the plaintiff's hand, while he was in the exercise of due care, exerting himself and making the motions aforesaid in the course of his employment suddenly became caught by said geared wheels," etc. This states no emergency. Unusual and unexpected action, for which one is not prepared, are important elements of an emergency. So far as appears, the sudden throwing of the wheels out of gear was nothing unusual. Indeed, the lever referred to was for that very purpose. Its use also implies a quick ungearing of the wheels. No unusual exigency is averred demanding exclusive attention. Disano v. N. E. Steam Brick Co., 20 R. I. 452, 40 Atl. 7; Russell v. Riverside, 24 R. I. 591, 54 Atl. 375. Neither does it show impending peril, where error in judgment may be excused. Baumler v. Narragansett 23 R. I. 430, 50 Atl. 841. On the contrary, it avers forgetfulness simply, failure to look, and the putting of his hand where the lever would not have been had it been in place.

The youth and immaturity of the plaintiff are alleged, but this is not enough if the plaintiff knew and appreciated the danger. There is no allegation that he did not On the contrary, as already stated, the declaration implies knowledge on his part.

A promise by the defendant's foreman to replace the lever is also alleged in the declaration, but as the absence of the lever was not the proximate cause of the injury, the allegation has no bearing on the case.

The fourth count charges the defendant with a violation of Gen. Laws 1896, c. 68, 8 6. The part of the section bearing upon this case is: "All belting and gearing shall be provided with proper safeguard." The question whether a plaintiff can recover for a breach of statutory duty notwithstanding an assumption of risk or contributory negligence on his part is one on which there is some difference of opinion, but we think the clear weight of reason and authority is against such recovery. A statutory duty is no more imperative...