McClaren v. Weber Bros. Shoe Co.

• Decision Date: 19 January 1909
• Docket Number: 775.
• Citation: 166 F. 714
• Parties: McCLAREN v. WEBER BROS. SHOE CO.
• Court: U.S. Court of Appeals — First Circuit

166 F. 714

McCLAREN v. WEBER BROS. SHOE CO.

No. 775.

United States Court of Appeals, First Circuit.

January 19, 1909

Alexander Lincoln (Whipple, Sears & Ogden and Sherman Whipple, on the brief), for plaintiff in error.

Francis Peabody, Jr. (Peabody & Arnold, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and DODGE, District Judge.

PUTNAM Circuit Judge.

In this case the plaintiff in the court of first instance is also the plaintiff in error. Therefore we will speak of the two parties as the plaintiff and the defendant. This suit arose out of the same injury by the same machine involved in the writ of error in McClaren v. United Shoe Machinery Company (No. 736) 166 fed. 712, where an opinion was passed down simultaneously with this; and some matters herein are explained there. The essential difference is that Weber Bros. Shoe Company was the employer of the plaintiff using the machine leased by it from the United Shoe Machinery Company, as explained in the other suit.

The case was tried to a jury, and the learned judge of the Circuit Court directed a verdict for the defendant, whereupon the plaintiff took out this writ of error.

The declaration contains three counts. The second and third counts were under the Massachusetts employers' liability statutes, alleging defects in the defendant's machinery and the negligence of the superintendent. The first count was at common law. Under the circumstances, the second count is immaterial; and, so far as the third count is concerned, the verdict was properly directed for the defendant, because, if there was any negligence, it was on the part of the corporation itself in furnishing a defective machine. The foreman, or superintendent, in charge of the machine and its repairs, seems to have been especially diligent in endeavoring to remedy the defects.

The other count shows that the machine was a stitching machine which the plaintiff was operating, and that, while so engaged, a needle broke and a piece thereof penetrated his eye. It states that the plaintiff was injured 'by reason of the negligence of the defendant in providing and maintaining an insufficient, improper, defective, and dangerous machine. ' It fails, however, to point out in what way the defective condition resulted in breaking the needle, or, in fact, that it did cause its breaking. With proper allegations on this point we would understand the case, and apply the testimony, with more facility than we now can. Nevertheless, the defendant seems to have been content with the pleadings, and we must work them out as best we can.

At the trial, the plaintiff claimed to have no knowledge himself of what caused the needle to break, this being a part of his major proposition that he had no reason to anticipate that it would break; but it seems to be now claimed that the breaking was caused by the looseness of the looper-lever, together with the worn condition of the needle guide. A witness who was undoubtedly sufficiently expert in this matter, although he was only an experienced operator of similar machines, gave it as his opinion that it was caused by the striking of the needle by the loose looper-lever, in consequence of the worn condition of the guide, because the needle was not accurately directed, and so was allowed to strike in some other place than the hole which the awl provided for it; and that thus it was made to bind in coming back, so that it finally broke and flew off. This testimony was given in response to a hypothetical question, as to which the record states that it was answered under the defendant's exception; but the ground of the exception is not given. To our mind, the testimony was proper and relevant, and tended to supply what was lacking in the pleadings, and to show whether the breaking of the needle was caused by the defective condition of the machine. Therefore, we think there was enough to go to the jury on the proposition that this defective condition was the proximate cause of the injury.

The next questions are as follows: First, was there enough to go to the jury on the question whether there was negligence on the part of the defendant in reference to the defective condition of the machine? Second, was that defect of such a character that there was sufficient to go to the jury on the question whether the injury to the plaintiff was a natural consequence thereof within the meaning of the law?

And third, was the defect one as to which the defendant had reason to anticipate the possibilities to such an extent that it was bound to guard against them? So far as the first interrogatory is concerned, we are of the opinion that there was sufficient evidence of negligence on the part of the defendant to go to the jury. There was proof that the machine in question was made up of old parts of other machines. There was also proof that, after the plaintiff commenced working on it, it broke down twice, followed by attempted repairs made under the direction of the plaintiff's foreman, which repairs were followed in each case by another breaking down after running a very short time.

The testimony of the expert to which we have referred embraced also, sufficient to require that the second and third interrogatories should be answered affirmatively. The jury might have inferred that, as the probabilities with regard to the effect of the defect in the mechanism were apparent to him, they were, therefore, also apparent to the defendant, engaged as it was in the business of operating many of these machines.

At this point it is necessary to take up the story somewhat further. It appeared that, after the two attempts at putting the machine in order, the plaintiff told the defendant's foreman that he would have to leave because he could not afford to hang around longer. Thereupon the foreman told him to wait; that he would have the machine put in order 'and that everything would be 'O.K." Then there came a mechanic from the Goodyear Company, so called, by which was meant the corporation which constructed this class of machines, and, therefore, well to be assumed to be fully competent to repair. The plaintiff testified that he, this...