Venbuvr v. Lafayette Worsted Mills

• Decision Date: 24 March 1905
• Citation: 27 R.I. 89,60 A. 770
• Parties: VENBUVR v. LAFAYETTE WORSTED MILLS.
• Court: Rhode Island Supreme Court

60 A. 770

27 R.I. 89

VENBUVR

v. LAFAYETTE WORSTED MILLS.

Supreme Court of Rhode Island.

March 24, 1905.

Trespass on the case for negligence by Lievin Venbuvr against the Lafayette Worsted Mills. Heard on defendant's petition for new trial. Granted.

Argued before DOUGLAS, C. J., and DUBOIS, J.

David S. Baker and Lewis A. Waterman, for plaintiff. Vincent, Boss & Barnefield, for defendant.

DUBOIS, J. This is an action of trespass on the case for negligence of the defendant in permitting a mechanical ventilator or fan, called a "blower," which it had installed by the side of and parallel with a passageway in its manufactory, to remain uncovered and unguarded; and also in permitting the floor in the vicinity of the blower to become and remain in a dangerously slippery condition, in consequence of which the plaintiff, a boy of the age of 12 1/2 years, employed by the defendant, while performing his duty in the ordinary course of his employment, ignorant of the danger to which he was exposed, and exercising due care, slipped and fell upon the floor, which caused his right hand to enter into the mouth of the unguarded and uncovered blower, and therein to be mangled and maimed, to his serious and permanent injury. After a verdict for the plaintiff, the defendant has petitioned for a new trial, upon the grounds that the verdict is against the law and the evidence and the weight thereof; that it appears from the record that the defendant was not guilty of negligence; that it also appears that the plaintiff was guilty of contributory negligence; that it further appears that, if there was any negligence, it was the negligence of a fellow servant; that it likewise appears that the plaintiff assumed the risk of the accident; that the court erred in refusing to charge the jury in accordance with defendant's second, fourth, and seventh requests; and that the verdict of the jury was excessive and unjust.

The plaintiff claims that the accident resulted from a combination of the violation of two duties which the defendant owed to him, namely, the duty of guarding or covering dangerous machinery, and that of keeping its floor reasonably safe for its employés to walk upon. It appears that the plaintiff had been working for the defendant in its mill for three weeks prior to the accident, his duties requiring him to clean the closets and assist the spinners; that he had been generally warned against the danger incident to machinery in motion, but that he had not been warned and did not know the danger of slipping and getting his hand caught in the blower. It is a rotary blower, and consists of an iron or steel six-spoke paddle wheel, about one foot in din meter, inclosed for revolution in a circular iron paddle box, open on each side thereof around the end of the axle for a space about six inches in diameter, for the admission of air, and having tangental to its circumference a flanged opening about seven inches in diameter, through which the air is expelled in its operation. This box is made to rest upon and be supported by two brackets, which are constituent parts thereof, and in position its lower portion forms a pipe ending with the flanged opening. It was set in defendant's mill in such a manner that its mouth was pointed diagonally upward at a distance of two feet and two inches from the floor. The blower is operated by belt and pulley, and in use the wheel revolves with considerable rapidity; according to the testimony of a witness, "terribly fast," but at what rate of speed the testimony does not disclose. It appears that for the purpose of forcing the air to a greater distance a pipe or nozzle had been attached to the flange of the opening in the blower, and that such nozzle had been kept thereon during the greater part of the time that the plaintiff was in the employ of the defendant, and until the same was removed, on the day before the accident, by the defendant's overseer, "to put on a new pipe to get more air," but that the new pipe was not put on; that without any pipe or nozzle the distance through the opening from the exterior of the flange to the nearest paddle is 7 10/16 inches, and that the pipe or nozzle is over 2 feet in length. So that, while the pipe was attached, the interior of the machine could not be reached by a hand inserted into the pipe. The exposure of that orifice by act of the servant and agent of the defendant in removing the pipe from the blower, and leaving them apart without substituting another in its stead, constitutes the first ground of negligence complained of.

The plaintiff alone testified to the accident and its cause; indeed, no claim is made that any other person was present at the time. His version of the accident on direct examination, as translated by an Interpreter, was: "As I was going back, I went to the privy. I slipped, and my head went against the wall. I had a broom in my hand, and I went to protect myself, and my hand went into the ventilator. Q. He had what in his hand? A. Pail and broom. Q. When your hand went into the ventilator, what happened? A. It made some noise, and I pulled my band back, and I saw my fingers was cut off. Q. Which hand was it? A. Right hand." And on cross-examination he testified: "Q. Was the floor slippery all the way? A. No, it was slippery near the ventilator; there was some oil near there. Q. Did you notice it was not slippery the rest of the way? A. I was not looking at the floor; I was looking at the wall. Q. And you didn't see the floor anywhere, did you, before the accident happened? A. No. Q. And you didn't look to see what there was after it happened, did you? A. When I fell, I noticed something was bright, but I can't tell you what it was. Q. And, as you was passing along, the fan was on which side of you? A. At the left. Q. And you had a pail and broom in your hand? A. Yes. Q. Which hand did you have the pal] in? A. Right hand. Q. And did you set the pail down on the floor before the accident happened? A. No. Q. What became of the pail? A. I let it fall when I fell." It appears that the pail was found, after the accident, upright, half full of dirt, the contents having been undisturbed, at a distance of 4 1/2 feet from the mouth of the blower, in the direction in which he was going.

Two witnesses testified, and the plaintiff denied, that he admitted to them that the proximate cause of the injury was his own act in putting his hand into the blower for the purpose of ascertaining what it was and what it did. The testimony of Lucien Massart, defendant's overseer of the millroom, in regard to this matter, was as follows: "Q. What did you do with the boy after the accident? A. Took the boy down to the office. Q. And whether he made any statements there as to the way the accident occurred? A. Yes, sir. Q. What did he say? A. He said he put his hand in the blower to see what there was in there." The other witness, Camille Lefebre, also testified concerning the same: "Q. Did you hear him say anything? A. I heard him. Q. What did he say? A. He said he had put his hand into the blower to see what it was. Q. Did he say that more than once? A. Only once in the office. Q. And after...