164 Mass. 214 | Mass. | 1895
Upon the report, the question is whether the jury could find that some breach of the defendant’s duty to the plaintiff caused his hurt, and that he was himself using due care.
1. The fault of the workman who after oiling the machine neglected to readjust its cylinders cannot be imputed to the defendant. The oiling of the machine was one of the daily matters, regularly incident to its ordinary use, which must be intrusted to servants ; and in such cases, if a competent servant is selected, his negligence on a single occasion cannot be imputed to the master. Johnson v. Boston Tow-Boat Co. 135 Mass. 209. McGee v. Boston Cordage Co. 139 Mass. 445. Moynihan v. Hills Co. 146 Mass. 586. Ryalls v. Mechanics’ Mills, 150 Mass. 190, 195.
2. A majority of the court are of opinion that there was evidence of a breach of the defendant’s duty to give instruction and warning. The jury may have found that the plaintiff’s state of pupilage as to his work had not ended, and that Healy was yet charged with the duty of instructing him how to use the machine safely and properly ; that the plaintiff’s experience with the machine had been so very brief that he was chargeable with no more knowledge of it than he actually had; that he did not know that the cylinders were or could be out of adjustment; that he knew of no way of feeding the material but by the use of his hands; that the sudden falling through of the two pieces of rubber gave him no actual knowledge that the machine was
3. A majority of the court are also of opinion that the question whether the plaintiff was guilty of negligence, in attempting
Judgment for the plaintiff on the verdict.