288 Mass. 14 | Mass. | 1934
This is an action of tort brought in the Municipal Court by writ dated August 12, 1931, to recover compensation for personal injuries received by the plaintiff while employed by the defendant. The first count of the declaration alleged a defect in machinery due to the negligence of the defendant or of a person in his service entrusted with the duty of maintaining it in proper condition, and the second alleged negligence of the defendant or of a person entrusted with and exercising superintendence. There was a finding for the plaintiff on the first count and a report to the Appellate Division which was dismissed.
The defendant was engaged in the rag business. He was not insured under the workmen’s compensation law., G. L. (Ter. Ed.) c. 152. There was evidence that the plaintiff was injured, on June 5, 1931, while operating a press in baling felt, by reason of a handle of the press flying up and carrying the plaintiff with it and causing him to fall to the floor. It could have been found on contradictory evidence that the handle was defective in that it had been cracked and wired together, and that, because of the wiring, “cogs” intended to hold the handle when it was pushed down would not do so. The plaintiff testified he was working for the defendant at $12 a week, that he “had baled on and off for twenty-five years,” that he “knew felt was a springy substance,” that for three months “the handle of the press had been in the condition it was at the time of the accident,” that he had told the defendant to fix the
The defendant made numerous requests for findings or rulings which were granted if material. Among them were the following: “1. That no notice was given the defendant as required by the statute ■ — ■ G. L. c. 153, § 6,” and “13. As G. L. c. 153, § 6, requires that no action by an employee against an employer for the recovery of damages for injury shall be maintained unless notice of the time, place and cause of the injury is given to the1 employer within- sixty days after the accident which caused the injury, and that such notice shall be in writing, therefore there should be a finding for the defendant.” The following request was not granted: “14. As the plaintiff has not complied with G. L. c. 153, § 6, therefore there should be a finding for the defendant.” The defendant also made requests which were not granted, either because they involved questions of fact or because they were based upon facts not found by the judge. Among these requests was the following, with respect to which the judge’s ruling was the one word “Fact”: “4. There is no evidence tending to show negligence on the part of the defendant towards the plaintiff.” No requests were made for rulings based upon the pleadings.
It is apparent that the finding for the plaintiff was made
There was no evidence tending to show negligence, at common law modified by statute, on the part of the defendant toward the plaintiff. Consequently the judge’s disposition of the fourth request was erroneous.
The case for the plaintiff rests wholly upon a defect in the press. There was no evidence of negligence on the part of the defendant unless in respect to such a defect. But, aside from the matter of the defendant’s promise to “fix” the handle of the press “later,” hereinafter considered, proof that the defect in the press was not in existence at the time the plaintiff entered the employment of the defendant, or, if it was then in existence, that the danger created thereby was not obvious to him, was essential to proof of negligence on the part of the defendant. Shannon v. Willard, 201 Mass. 377, 380. Wood v. Danas, 230 Mass. 587, 591-593. McRae v. Gorton-Pew Vessels Co. 254 Mass. 548, 550. There was no direct evidence and no ground for inference warranting either of these essential findings. Compare Haley v. Lombard, 207 Mass. 545, 548. In the absence of such proof it must be taken that the risk created by the defect was incident to the employment even though the risk was unusual. Kenney v. Hingham Cordage Co. 168 Mass. 278, 282. McCafferty v. Lewando’s French Dyeing & Cleansing Co. 194 Mass. 412, 414. Prior to the defendant’s promise to “fix” the handle of the press “later” there was, so far as appears, no duty on the defendant to warn the plaintiff of the defect or to repair it. The provisions of G. L. (Ter. Ed.) c. 153, § 3,
The evidence did not warrant the finding of negligence on the part of the defendant because of his promise to “fix” the handle of the press “later.” Such a promise would not preclude the defence of voluntary assumption of risk at the common law unless the employee continued in the employment in reliance thereon, or, under G. L. (Ter. Ed.) c. 153, § 3, unless after the defect was reported it was not remedied within a reasonable time. Wood v. Danas, 230 Mass. 587, 593. But here no question of voluntary assumption of risk arises since, by G. L. (Ter. Ed.) c. 152, § 66, the defendant is deprived of this defence. Such a promise, however, would not enlarge the defendant’s duty to the employee unless a new contract of service, modifying the original contract of service, was effected, by which the employer agreed to remedy the defect. Wood v. Danas, 230 Mass. 587, 593-594. Even if, as we do not decide, the evidence warranted a finding that a new contract of service was made between the plaintiff and the defendant by the defendant’s promise following the plaintiff’s complaint, and the plaintiff’s continuing to work in
Since a correct disposition of the defendant’s fourth request would have disposed of the case in favor of the defendant, it is unnecessary to consider the defendant’s other requests. The order of the Appellate Division dismissing the report is reversed and judgment is to be entered for the defendant. G. L. (Ter. Ed.) c. 231, §§ 124, 141. Loanes v. Gast, 216 Mass. 197, 199-200. Silverstein v. Saster, 285 Mass. 453, 458.
So ordered.