Campbell v. Eveleth , 83 Me. 50 ( 1890 )

Virgin, J.

The gravamen of the plaintiff’s complaint in his amended count is that he lost his hand while running the defendant’s lath machine, on account of his inexperience and the defendant’s omission to give Mm such information and instruction as were reasonably necessary and sufficient to enable him to appreciate the perils to which he would be exposed by using the faulty machinery in the course of his employment, and, with reasonable care on his part, to safely perform his work.

The plaintiff" engaged to perform carpenter work upon the defendant’s boarding house, already erected but unfinished, to commence as soon as the vuathcr would permit. He had never run a circular saw or other machinery, but had tailed at a rotary three days. Being short of hands in his mill, the defendant, while waiting for the weather to moderate so that work could be resumed upon his boarding house, requested the plaintiff’ to work his lath machine which required two persons. After being shown for fifteen to thirty minutes how to work it, the plaintiff, on March 27, was put in charge of his now employment wdth another employe to do the tailing.

From turn to six times a day, the sawdust, accumulating at the bottom of the spout in the edge of the water under the mill or sticking in the angle of the spout a short distance below the floor, filled it up ; when it became necessary to clean it out by one going down and removing the obstructing accumulation at the lower end and the other pushing the sawdust down the spout with a stick.

While being instructed in sawing, the spout did not happen to become clogged, and the plaintiff" received no instruction as to the mode of clearing it.

During the first day or two, whenever the spout became choked, he stopped the saw and removed the sawdust in the manner described, which required some fifteen minutes.

On April 9, after having prosecuted his work ten or eleven days without stopping the saw and while pushing the sawdust down the spout with a stick some two feet in length, his hand which held the stick came in contact with the lower edge of the revolving saw under the saw-bench which was about twenty-two inches above the mouth of the spout in the floor, and was so-severely lacerated as to necessitate amputation at the wrist.

This is not the case of an experienced workman set to operating machinery dangerous and demanding care which, nevertheless, he fully understands and voluntarily assumes the risk incident thereto. The usual danger of contact with such a dangerous implement as a circular saw in rapid motion is obvi ous to the eyes of all who have reached the years of discretion, when it is in plain sight. But the plaintiff’s injury was not caused by the revolving saw above the bench, but by the two or three inches of it which protruded through and underneath it and which was less than two feet from the floor and so hidden from view by the length of the bench and the upper horizontal strip three or four inches wide which secured in place the legs of the bench, as not to be visible to the workman’s eyes unless they were within eighteen or nineteen inches of the floor.

The inexperienced servant does not assume the risk of perils which he knows not of, and which are not called to his attention ; but of such only as he knows, or by the exercise of ordinary care, ought to know. Hull v. Hall, 78 Maine, 114.

We cannot decide, as matter of law, that the machinery under that saw-bench which the plaintiff wras obliged to use in the course -of his employment, wras in such a condition that a jury would not be authorized to find it unsafe and improper for a new beginner to be put to work upon without proper notice and reasonable instructions relating thereto.

Nor can we say, as matter of lavr, that a jury would not be warranted by the evidence in finding that contributory negligence was not imputable to the plaintiff. It would be absurd to suppose that the plaintiff recklessly destroyed his right hand. There is evidence that 'would warrant the finding that, if the spout had been constructed in accordance with the suggestion of the witness who had built forty mills besides this one, — though be did not complete this ; or if the machine had been boarded xxp as he suggested; or if instead of either, a guard had extended down from the under side of the bench on each side of the saw,— then this injury could not have happened. Nor in all probability would it have occurred, if the defendant had not omitted to inform the plaintiff of that which he needed to know in order to be safe (Sullivan v. India Manf. Co. 113 Mass. 396) and had notified him of the danger to be incurred so frequently each day, in undertaking to aid a defective spout in carrying away the sawdust which it would do without assistance if properly constructed.

The mere fact that the plaintiff shut dowm the saw the first two or three times does not conclusively prove that he appreciated the peril of not doing so. Numerous explanations suggest themselves when taken in connection with the time required to stop, and set in motion again the saw. And even if he did know the danger, such knowledge would not, as a matter of law, impute contributory negligence to him such as would forbid the finding to the contrary; for it "would be mere evidence of such negligence to be considered along with the other facts and circumstances in the case. Kane v. Northern Centr. R. R. Co. 128 U. S. 91. Guthrie v. Me. Centr. R. R. Co, 81 Maine, 572.

Moreover, without expressing our own opinion as to what the verdict should be, the fact that fair-minded men,— as seen by the want of unanimity on the part of this court, — .might reasonably reach different conclusions upon the issues whether the injury was caused by the contributory negligence of the plaintiff’, or by the negligent omission of the defendant to inform and reasonably instruct the plaintiff as to the peril to which he might be exposed in attempting to clear the defective spout without stopping the saw; we think that it was a question which under proper instructions should be submitted to the jury. Nugent v. B. C. & M. R. R. Co. 80 Maine, 70.

Case to stand for trial.

Peters, C. J., Libbey, Foster, Haskell and Wiiiteíiouse, JJ., concurred.