McGar v. Nat'l & Providence Worsted Mills

• Decision Date: 19 January 1901
• Citation: 22 R.I. 347,47 A. 1092
• Court: Rhode Island Supreme Court
• Parties: McGAR v. NATIONAL & PROVIDENCE WORSTED MILLS.

47 A. 1092

22 R.I. 347

McGAR

v. NATIONAL & PROVIDENCE WORSTED MILLS.

Supreme Court of Rhode Island.

Jan. 19, 1901.

Action by Sarah McGar, by her next friend, against the National & Providence Worsted Mills. After verdict for plaintiff, defendant petitions for a new trial. Denied.

John W. Hogan, for plaintiff.

Dana S. Baker, Lewis A. Waterman, and Arthur M. Allen, for defendant.

TILLINGHAST, J. This is trespass on the case for negligence. The jury found for the plaintiff, and the defendant petitions for a new trial on the grounds that the verdict is against the evidence, that the court erred in certain of its rulings, and that the damages awarded by the jury are excessive. The last ground is not relied on. At the time of the accident the plaintiff was in the employ of defendant corporation, and was operating a spinning frame, which was run by a power belt leading from the main shafting over the machine near the ceiling, and carried down over a gallows pulley to the end of the spinning frame opposite the main shafting. These spinning frames are set up in rows four or five feet apart, parallel with each other, and at right angles to the main shafting. The spaces between them are called alleys. The operative works all along the alley in front of the frame, and almost directly under the belt which operates it This belt is about 3 inches wide, one-fourth of an inch in thickness, and about 70 or 80 feet in length. When in full operation, the speed of the shaft is about 225 revolutions a minute, and the tension on the belt is about 1,400 pounds. The belt is made of several sections stitched or fastened together at the joints with rawhide lacing. The average life of a lacing or joint is from four to six months. On the morning of the accident the plaintiff, a girl of 17 years of age, was at work tending her frame, and while the machine was running at full speed the belt suddenly and without warning broke in one of its joints, and struck her on the right side of her head, winding itself about her neck, so that she was partly lifted off her feet, and then fell over upon the floor in an uncon scious condition. Her injuries, which were very severe, caused her to be confined to her bed for over four months, and finally developed into a severe case of major hysteria, from which she has not recovered, and may never recover. The plaintiff alleges and claims to have shown negligence on the part of the defendant in two particulars, namely: (1) In that the belt which broke and struck the plaintiff was improperly stitched or laced at the place where it parted; and (2) in that the defendant failed to properly inspect the joints of said belts from time to time, in order to discover the natural wear and weakness of the lacings. The testimony as to the manner in which the particular belt in question was laced or stitched before the accident is conflicting. The plaintiff testifies that about a month before the accident the section hand Smith relaced all of the joints in the belt, she assisting him at his request, by holding the belt, and that the manner in which he repaired or fixed it was by punching four holes in a row in each end of the belt where it was to be joined, and then lacing the ends together by single lacing; that is, as we understand her, by putting one strand of lacing only through the holes. The witness Higgenbottom, who was employed in the same room with the plaintiff as assistant to the second hand, testifies that he saw the belt just after the accident, and helped Smith, the second hand, to fix it when it was relaced by him; that the lacings broke in the joint where the belt parted, and that they were worn pretty bad. He also testifies that the lacing which broke was single lacing, with only one, row of holes on each side of the joint before it broke. In cross-examination he further testifies that when repairing the broken Joint the second hand punched a new row of holes upon each side of the joint; that the holes in the old part were not disturbed, and that he punched new holes because the belt was not laced right in the first place; that there was only one row of holes in each end of the belt; and that it was the custom to stitch all the joints in the belts there with a single strand of lacing through the holes. On the part of the defendant testimony was introduced to the effect that two rows of holes were punched in each end of said belt at the places where it was joined, and that double lacing, instead of single, was used in making the fastenings. Smith, the second hand, testifies that it was so laced by him before the accident, and that he did not punch new holes in it after the accident; that it was the lacing that broke. The testimony of experts in belt making was introduced both on the part of the plaintiff and of the defendant, and they all practically agree that the double-lacing method is generally adopted by skilled belt makers and repairers, and that it lasts three or four times longer than the single-lacing method. One of the defendant's experts says that he does not know of any well-regulated mill that would use the single lacing referred to, and that, in his opinion, a joint laced with a single row of holes on each side and with a single strand of lacing would not be safe. In short, it is apparent from an examination of all the evidence bearing upon the question of the character and sufficiency of the kind of stitching or lacing first described—that is, the single strand placed in a single row of holes on each end of the joint—that it is considered insufficient and unsafe. As it was competent for the jury to find under the foregoing state of the testimony that the belt in question was improperly and insecurely laced, the court cannot say that they were not warranted in finding the defendant guilty of negligence. Its duty clearly was to provide the plaintiff, in common with its other employes, a reasonably safe place in which to work, and reasonably safe appliances and instrumentalities for the performance of the work; and for negligence in the discharge of this duty the defendant is liable under the well-settled law of master and servant. Mulvey v. Locomotive Works, 14 R. I. 204. We agree with the position taken by defendant that the employer does not undertake with the employe that he will adopt the latest and best appliances, or that he is to be cast in damages for error of judgment in selecting one kind of machinery or appliance on proof that another kind is better or safer, when both kinds are in common use. This doctrine is in accord with our own repeated decisions. See the late case of Disano v. Brick Co., 20 R, I. 452, 40 Atl. 7. But the appliance here used, if it was constructed as the plaintiff's witnesses testify, is practically condemned by the defendant's own witnesses, and shown not to be in common use in well-regulated and well-managed establishments; and hence we fail to see the pertinency of the doctrine as applied to this case. In short, the law does not fit the case, assuming, as we must, that the jury found the belt to have been fastened with a single lacing through four single holes in each end of the belt.

Whether the belts in the spinning room were properly inspected from time to time was also a question of fact for the jury under the conflicting testimony bearing upon this branch of the case. With regard to the question of inspection, it is pertinent to remark that, whether the method adopted by the defendant was sufficient or insufficient, it would not be controlling on this petition for a new trial, for the reason that, although the jury may have found that it was sufficient and proper, yet, as it was competent for them to find negligence on the other and principal ground, which has already been considered by us, it cannot be said that they did not so find. In other words, two grounds of negligence having been alleged by the plaintiff, either of which, if made out would be sufficient to sustain the verdict in regard to the negligence of defendant, and evidence having been offered pro and con upon each of said grounds, the court cannot grant a new trial if it can see that one of the grounds is made out, although the other may not be, unless it shall appear by a special finding of the jury that their verdict is based upon a ground which is not sustained by the evidence; and in the case before us there were no special findings by the jury. It is further to be observed that, if the method of lacing employed was wrong, this constituted a defect in construction, for which the defendant is liable, and which would not have been corrected by inspection, however frequent; and, if this original negligence existed, it was quite immaterial whether the subsequent inspection of the belt was sufficient or insufficient, or whether there was any inspection at all, for the jury could properly have found that the accident was caused by such original negligence.

But the defendant contends that, even granting that it failed to discharge its...