Lynch v. M.T. Stevens & Sons Co.

• Decision Date: 28 February 1905
• Citation: 187 Mass. 397,73 N.E. 478
• Parties: LYNCH v. M. T. STEVENS & SONS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 397

73 N.E. 478

LYNCH v. M. T. STEVENS & SONS CO.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1905

COUNSEL

Eaton & Chandler, for plaintiff.

Knox & Coulson, for defendant.

OPINION

LORING, J.

This was an action to recover for loss of a hand, caused by a wool picker starting automatically from a dead stop while the plaintiff was cleaning the machine as he had been told to do. The machine was operated by a belt which came up through the floor, and passed over a tight or a loose pulley on the machine as it was moved from one pulley to the other by a shipper handle. This belt and these pulleys were entirely covered by the wooden casings, and could not be seen by the operator of the machine. At the time of the accident the plaintiff was 16 years of age, and had been at work in the picker room for 2 weeks. He testified that during the first week of his employment in that room he saw the machine start automatically; that he reported this to the foreman who hired him and had charge of the room; that the foreman promised to fix it; that he went to the foreman's office the next morning before he began work, and asked if the machine was all right, and the foreman said it was. The loose pulley was slightly convex, and one-eighth of an inch smaller than the tight pulley. The belt was always in motion, and, when on the loose pulley, was intended to run around it loosely, without setting the machine in motion. There was evidence that there was too much vibration on the loose pulley, caused by the shaft being worn; that the belt was too tight; and that under such circumstances, when the belt had been thrown onto the loose pulley it might automatically work back on to the tight pulley. This entitled the plaintiff to go to the jury on the common law ground that the machine was defective through the defendant's failure to perform the duty owed by it, from which it is not released by committing the performance of it to its servants (for similar cases, see Gregory v. American Thread Co. [Mass.] 72 N.E. 962 and cases there cited), as well as on the ground that there was a defect in the machinery, under Rev. Laws, c. 106, § 71, cl. 1, of which the defendant's foreman, who had charge of its repairs, had notice, and which was not remedied, through his negligence.

The plaintiff had a right to rely on the assurance given by the foreman the day after he promised to fix the machine that it was all right. Gregory v. American Thread Co., ubi supra; Mooney v. Connecticut River Lumber Co., 154 Mass. 407, 28 N.E. 352.

The defendant's main contention here on the merits is that the plaintiff is prevented from recovering by his negligence in not plugging the shipper handle after it had been pulled away from the machine as far as it would go, which there was evidence that he did, and which was the proper thing to do to stop the machine. There was a cleat back of the machine, with holes in it, and there was a hold in the handle of the shipper. On the part of the defendant, there was evidence that a plug was furnished by it for this purpose. But the plaintiff and other witnesses testified in his behalf that there was none.

The defendant also contended that, so far as the employers' liability act was concerned, the plaintiff was barred by Rev. Laws, c. 106, § 77, because he had not asked for a plug. In this connection, the defendant relies on the plaintiff's testimony 'that he knew that, if a plug was pushed through the hold of the shipper handle into the hole in the cleat directly behind it, * * * it would hold the shipper handle firmly in place, but that there was no plug there for that purpose, and had never been during the time he worked for defendant, and that he had never been instructed that a plug was necessary, and that he did not know that it was necessary in order to hold the shipper handle from moving, and that he never complained of its absence.' But the plaintiff also testified 'that this [pushing the shipper handle back] was all he ever did or ever saw done, or was ever told to do or ever understood was necessary to be done when he wished to keep the machine from running, while he was in the employ of the defendant'; and an expert testified in his behalf 'that, even if a plug had been used to secure the shipper handle when the belt was running on the loose pulley, * * * a belt as tight as this one was might have started the machine from the loose pulley.'

This brings us to the...