205 Mass. 238 | Mass. | 1910
This is an action of tort to recover damages for personal injury. The plaintiff was a foreman plumber and piper in the employ of the defendants Aldrich and Shea, who were performing certain work under contract for or upon the estate of the other defendant, which owned and operated an amusement park. The injuries were sustained in a small building called the pump house, which contained a pump, by which water was forced to the top of a chute in the park down which it flowed, and contained also unguarded cog wheels and other machinery connected with the pump. The supply of water was through pipes regulated by valves just outside, and turned from, a window in the pump house, all of which had been built and installed after the plaintiff entered the employment and which had been in use about a fortnight before the accident. In order to reach that window it was necessary to walk partly around the pump and in a passageway about eighteen inches wide be: tween the side of the building and the cog wheels. There was evidence which, given its full probatory force, would warrant the jury in finding that between daylight and dark of a cloudy June night the plaintiff was directed both by the defendant Aldrich and by an agent of the Wonderland Company to go to the pump house and try the valves and see what the trouble was with them, as the water was not flowing down the chute as it should; that he had not been to the place for fifteen days, and had never before seen the pump in operation, nor had anything
1. There was sufficient evidence to support a finding that the plaintiff was in the exercise of due care. He was going into a building with whose general construction and arrangement of machinery he was familiar. Even though it may have been somewhat dark, the conditions as he had known them might reasonably have been assumed to remain permanent, in view of the uses of the building, and although the floor perhaps could not have been expected to be wholly free from oil, he was not as matter of law bound to anticipate and guard against
2. It cannot be said as matter of law that the plaintiff assumed the risk of injury resulting from the oily floor. The doctrine of contractual assumption of risk does not apply, for the reason that the condition, both of the broken oil cup and the lubricated floor, had come into existence since his contract of employment. He did not in fact know of the danger which caused his injury. The workman can be barred of recovery for injuries resulting from perils arising during the course of employment only when he realizes their nature and extent with full comprehension of the danger, and continues in the service with the added exposure voluntarily and intelligently. O’Toole v. Pruyn, 201 Mass. 126.
3. Hegligence of the Wonderland Company may well have been predicated upon its use for several days of a cracked and leaky oil cup under such circumstances that a large part of its contents continually flowed upon the floor of a passageway, where it was necessary or might become necessary for others than those in charge of the machinery to pass. Although the defendants Aldrich and Shea did not own the building or operate the machinery, yet it might have .been found to have been a part of their work to regulate the flow of water down the chutes and to test the valves. In order to do this, it was necessary to go to the place where the plaintiff was injured. There was evidence tending to show that each of them knew of the leaking oil cup several days before the accident, and one of them had promised to remedy it. These circumstances may have been found to be enough to charge them with negligence in setting the plaintiff at work in a dangerous place of which he was ignorant without any warning. If they had no right to change the oil cup, they had knowledge of a danger and the duty to warn
4. The principle that the cause of the injury is left a conjecture, as in Childs v. American Express Co. 197 Mass. 337, is invoked in behalf of all the defendants, because there is faint evidence that mud was tracked into the pump room from outside. But testimony to this effect was slight in itself, and most of the witnesses who described the surface of the floor where the plaintiff fell made no mention of anything aside from the oil. The decided weight of evidence pointed to that as the cause of his injury.
5. It is urged that there was no evidence of a copartnership between the defendants Aldrich and Shea. It was not questioned that a person or persons doing business as the Aldrich and Shea Construction Company had a contract for doing the work, upon which the plaintiff was engaged. Both Aldrich and Shea were upon the premises every day, and the former had referred to the latter as his partner. This statement standing alone was evidence only against the one who made it. Rosseau v. Deschenes, 203 Mass. 261. Shea hired men, gave directions indicative of a master’s power, and when notified of the defective oil cup “ said he would have it seen to.” Several witnesses in testifying referred without objection to “ Aldrich & Shea ” as a firm. Though this may not have been competent evidence, yet, being in, it was entitled to its probative force. Hubbard v. Allyn, 200 Mass. 166, 171. A printed letter head used by Aldrich bore the names of both Shea and Aldrich. These circumstances taken together were sufficient to support a finding of a copartnership. Smith v. Paul Boyton Co. 176 Mass. 217. Norris v. Anthony, 193 Mass. 225. Rosseau v. Deschenes, 203 Mass. 261. Case v. Baldwin, 136 Mass. 90. McMurtrie v. Guiler, 183 Mass. 451. Gay v. Ray, 189 Mass. 112. Ashley v. Dowling, 203 Mass. 311. Sumner v. Gardiner, 184 Mass. 433.
6. It is contended that the defendants cannot be held jointly liable. Wrongdoers acting independently, whose tortious con
Exceptions to evidence have not been argued, and are treated as waived.
Hxeeptions overruled.
