Arnold v. Harrington Cutlery Co.

76 N.E. 194, 189 Mass. 547, 1905 Mass. LEXIS 932

• Court: Massachusetts Supreme Judicial Court
• Decided: December 1, 1905
• Status: Published

Opinion

Knowlton, C. J.

The plaintiff was working for the defendant at cutting knife blades from steel with a punch and die, upon a press, and a small fragment of the steel flew, and struck him in one of his eyes, thereby causing the loss of that eye. This action is brought to recover damages, on the ground that the defendant was negligently using unannealed steel. The plaintiff had worked for the defendant at punching knife blades about three years and a half, and, until the day before the accident, had used annealed sheet steel. The steel which he was using at the time of the accident was of a different kind, which was not properly described as annealed steel, or known in the trade by that name, but was commonly called floor annealed or semi-annealed steel. Upon some of the issues the testimony was contradictory; but there was evidence which would warrant the jury in finding that it was not a common practice among manufacturers of edged tools, such as the defendant was making, to use unannealed steel, and that unannealed steel was not proper for such uses. The evidence tended to show that the defendant did not buy this steel as annealed steel. Unannealed steel is likely to be harder and more brittle than annealed steel. Although there was much dispute on this point, the jury might have found that the defendant was negligent in using this steel at the time of the accident, and that the injury to the plaintiff was caused by this negligence.

There was evidence tending to show that the plaintiff was in the exercise of due care. It did not appear that he had any previous knowledge of the danger in using this kind of steel, and there was no evidence that he was careless in the manner of using it. After the flash and the unusual noise, as the punch struck the steel in the afternoon of the day before the accident, he went to the defendant’s manager and had a talk with him about it. After telling him of the occurrence, and saying of the piece of steel, “ Here is a place so hard I cannot file it. The file won’t touch it ”; the manager replied, “ Why, that is curious, and if we should order steel like that they could not make it for us.” When the plaintiff told him he never saw anything like it before, the manager said, “No, and you probably never will again.” Here was a statement from one upon whose judgment he properly might place some reliance, that probably he would not encounter a like danger again. The jury might find that the experience of that afternoon did not make it negligent for. him to continue the work the next day.

There is no ground for the contention that he assumed the risk of such an accident. There was no contractual assumption of the risk, for the contract of employment had no reference to the use of this kind of steel; and there was no subsequent assumption of the risk, for it cannot be said as a matter of law that he knew and appreciated the risk. Indeed, the evidence tends strongly to show that he did not know or appreciate it.

Two questions have been argued as to the admissibility of certain testimony of an expert witness, which was introduced subject to the defendant’s exception. The objection to the first hypothetical question is that it assumed the existence of a fact which had not been proved, namely, that the machine, in cutting the steel, “threw sparks and splinters.” The evidence was uncontradicted that on two occasions at least, the machine threw sparks, and that on one occasion it threw a splinter which entered the plaintiff’s eye. The jury might have thought that it threw other splinters that were not noticed, or sparks that were not thought of. We think the question was not incompetent on this ground.

The witness was allowed to testify that, in his opinion, the use of steel which had not been annealed, for manufacturing such cutlery as the defendant was then making, “ was not a reasonably safe process.”’ The defendant objects that the question

* did not call for the opinion of the expert as to what would be. likely to occur; but rather for his opinion as to whether, with such a probability of dangerous occurrences as he testified to in giving his opinion, it would be reasonably safe to .take the risk of them. There was some ambiguity in the question, and if the presiding judge had understood it as the defendant now wishes to have us interpret it, the expert should not have been permitted to answer. After first ascertaining the facts, it was for the jury alone to determine how great risks it was reasonable to take. But we think that the question was intended to obtain the opinion of the witness as to whether there were risks from the use of such steel, and how great the risks were. This was a matter for the opinion of an expert. We have no doubt that the judge interpreted the question in this way, and we are of opinion that the verdict should not be set aside on account of this interpretation, especially as it does not appear that the nature of the objection to the question was stated to the judge.

Exceptions overruled.

The question was as follows: “ What do you say as to its being a reasonably safe process in manufacturing cutlery, using the process of cutting edged tools, to use steel which has not been annealed for stock? ”