Marshall v. Dalton Paper Mills

• Decision Date: 20 October 1909
• Citation: 74 A. 108,82 Vt. 489
• Parties: MARSHALL v. DALTON PAPER MILLS.
• Court: Vermont Supreme Court

74 A. 108

82 Vt. 489

MARSHALL

v. DALTON PAPER MILLS.

Supreme Court of Vermont. Essex.

Oct. 20, 1909.

Exceptions from Essex County Court; Geo. M. Powers, Judge.

Action by Thomas J. Marshall against the Dalton Paper Mills. There was a verdict and judgment for plaintiff, and defendant excepts. Judgment affirmed, except as to the question of damages, and as to that question reversed and remanded.

The plaintiff seeks to recover for injuries received by reason of the alleged negligence of the defendant while in its employ in its paper mill, at about 2 o'clock in the morning of February 15, 1906. At the time of the accident the plaintiff was working as back tender on the paper machine, a position he had filled for some over a year. In time of work he alternated weekly between day and night, but at the time of the accident he was on the night shift. The facts which the evidence tended to show are stated in narrative form: The paper machine was a hundred or more feet in length, and in part consisted of press rolls, driers, calender rolls, reels, and a winder. The driers consisted of two series of metallic cylinders heated by steam, 4 feet in diameter and 146 inches in length, supported by an iron frame. One series of cylinders is above the other, and the cylinders in the upper series alternate with those in the lower series. There are two small rolls called felt rolls above and between the cylinders in the lower series, and one such roll between the cylinders in the upper series. An endless felt passes over the series of cylinders guided by the felt rolls. Its use is to guide the paper through the machine and press it against the hot cylinders. Beside the machine, in front of the driers, and attached to the frame, there is an iron running board 16 inches in width and about 15 inches above the floor, the upper surface of which is corrugated. The journals of the driers rest in boxes in the frame of the machine, and project out over the running board from 4 to 5 inches. The boxes of the journals were packed with hard grease and waste about once in four weeks; the work usually being done on Sunday. The felt rolls were oiled every day, and sometimes oftener. Both driers and felt rolls revolved rapidly. More or less grease dripped from the journals of the driers onto the running board. This was a daily occurrence, but it dripped sometimes faster than at other times, especially if the journals became unusually hot. This condition had existed during all the time the plaintiff had worked in the defendant's mill, and was known to him. The end of the machine where the press rolls are located is called the wet end, and the other end, where the calender stack and reels stand, is called the dry end. Wood fiber from the liquid pulp is gathered on felt, passes through the press rolls, by which moisture is taken out and thin sheets formed. From the press rolls the sheets are guided through the long series of driers, where the moisture is dried out of the paper into the calender stack or rolls, which put on the final gloss. It then runs on the reels, from which it goes on to the winder, where it is trimmed and shaped ready for the finishing room.

The several employes who operate a machine in order of rank, beginning with the lowest, are the broke hustler, screen boy, fifth hand, fourth hand, third hand, spare back tender, back tender, and machine tender. The plaintiff had worked in defendant's mill as fifth hand about a year, as fourth hand 11 months, as third hand 10 months, as spare back tender 2 months, and as back tender about one year prior to his injury. He had also worked some in other mills, and was an experienced man, but there was no evidence that he had ever been a machine tender. Among the duties of the plaintiff as back tender was that of keeping the paper running through the machine. Once in a while the paper would break, sometimes often, and at other times it would run all day without a break. When a break occurred, it was the duty of the back tender to adjust and start it again. If the break happened at the wet end, the back tender had to guide the paper through the driers. To do this he walked along the running board, guiding the paper onto the top series of driers with his left hand, and onto the lower series with his right, doing which he had to reach into the machine over the lower driers to a greater or less distance. The plaintiff knew and appreciated that in the performance of his work there was great danger of being caught between the felt and the driers, and if so caught he was liable to be injured, and would perhaps lose his life. He also knew and appreciated that there were apt to be dangers in walking along the running board.

Some of the time while plaintiff was back tender, one Ayers worked as spare back tender, in which time the plaintiff and the machine tender cleaned grease off the running board "lots of times." But at the time of the accident, and for some time before, a man by the name of Ray Hayes was spare back tender, and upon him rested the duty of keeping the running board clean. Hayes worked days only. He had not at all times performed his duty in this respect, but whenever the plaintiff had noticed grease collected thereon, he complained to the superintendent, and it was promptly attended to; but there had been no trouble of this kind for some time prior to the accident. Plaintiff knew and appreciated the fact that if grease accumulated on the running board, he was liable to slip when guiding the paper over the driers, and receive an injury by falling into them. The running board was not dangerous in and of itself. It was only by the presence of oil and grease on it that it became so; and the allowing of grease and oil there was the only negligence alleged in the declaration, or that the evidence tended to prove. Just before the accident there was a break in the paper at the wet end of the machine. Hearing the signal given by the machine tender, the plaintiff, being at the dry end, ran to the wet end, took up the paper, and started with it over the driers. When he had proceeded about two-thirds the length of the machine, the paper started to follow the felt around a felt roll. The plaintiff reached for it with his right hand, his foot slipped on the running board, and he fell onto the drier. His arm was caught between the felt and the cylinder. He immediately became unconscious. In some way he was thrown by the cylinder out onto the floor. His injury resulted in a complete paralysis of his right arm.

Exceptions were taken to the following statements made by plaintiff's attorney in the closing argument to the jury: "The indications in this case are that he has spent more time and money a good deal about getting lawyers to tell nice stories about this case than they did in having fellows look after that run board to keep the grease off from it." Also: "They have tried to keep him along until this case was disposed of. They gave him a job of tender or third hand, I think it is."

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.

Dunnett & Slack, for plaintiff. W. B. C. Stickney, Drew, Jordon, Shurtleff & Morris, and Harry Blodgett, for defendant.

WATSON, J. At the close of the evidence defendant moved for a verdict on the grounds: (1) That there was no evidence from which the jury could find the defendant guilty of negligence; (2) that the injury was caused by the negligence of a fellow servant; and (3) that the plaintiff assumed the risk.

It is argued that the plaintiff failed to show that his injury resulted from the accumulation of grease on the running board. The only testimony relating to the condition of the running board at the time of the accident was that of the broke hustler, Clarence W. Raymond, who testified that he was standing on the floor about 12 feet from the plaintiff; that he was watching the plaintiff as he came along the running board, guiding the paper in turn over one and under another roll; that in some way the paper did not go just right, and the plaintiff reached in to catch it, slipped, and went in; that the witness helped to carry the plaintiff into the finishing room, from which place he was taken home; that immediately thereafter the witness went to look at the place "right where he slipped," noticed it, and that a quantity of grease was there, 6 or 7 inches long, and about the width of the running board; that it was a good deal thicker in the middle than on the edges, and quite a little above the ridges of the running board. Upon this evidence uncontradicted the jury might well find that there was on the running board, at the time and place in question, an accumulation of grease in quantity as described by the witness, and that the slipping of the plaintiff was caused thereby. The plaintiff testified that the grease which dropped on the running board became very hard, which fact in itself, in the minds of the jury, might sufficiently account for the lack of evidence showing indications of a track made by him at the time of accident.

After the witness Raymond had testified as above stated, the plaintiff was called, and, subject to objection, was permitted to testify that it would take three or four days for grease to accumulate on the running board in the condition described by that witness; that sometimes it would form faster than others, yet it would never accumulate as described in a less time. No objection was made to the competency of the plaintiff to give such testimony, and the only ground urged why the evidence should have been excluded is that, since the plaintiff's injury was not shown to have resulted from the grease, the length of time in which it would so form was immaterial. But as under our holding above this ground of objection fails, the exception is without merit.

It is said that, inasmuch as the running board contained no structural defects, and it became dangerous only by the accumulation of grease thereon, the...