Chiuccariello v. Campbell, 210 Mass. 532

Chiuccariello v. Campbell

210 Mass. 532 | Mass. | 1912

Sheldon, J.

The jury could have found that the plaintiff in the first case was in the exercise of due care, and had not assumed the risk of the accident which happened. Murphy v. Marston Coal Co. 183 Mass. 385. O’Neil v. Ginn, 188 Mass. 346. Donovan v. Chase Shawmut Co. 201 Mass. 357.

The evidence tended to show that his injury was caused by the machine on which he was at work starting from a full stop without his having put it in motion by placing his foot upon *534the treadle, which was the way it was intended to be started. An expert testified that this could not have happened without some defect in the machine. The machine was comparatively new, having been in use less than six months.

There is no dispute that from the fact of this unexplained starting at a time and under circumstances when it ought not to have started at all, the jury could have found that there was a defect of some kind in the machine, and that this defect was the cause of the undue starting or repeating ” to which the injury was due. But the defendants contend that this, standing by itself, would not have warranted the further inference of any negligence or failure of duty on their part; and unless such negligence could have been found, the judge acted correctly in ordering a verdict in their favor.

It is perfectly true that negligence ordinarily cannot be inferred from the happening of an accident to an employee or from the discovery in a machine or other instrumentality of a latent defect for which under the existing circumstances no responsibility can be imputed to the employer. There is no liability for injury to a servant unless there has been some negligence for which the master is liable. Flynn v. Beebe, 98 Mass. 75. Roughan v. Boston & Lockport Block Co. 161 Mass. 24. Kenneson v. West End Street Railway, 168 Mass. 1. Harnois v. Cutting, 174 Mass. 398. Hofnauer v. R. H. White Co. 186 Mass. 47. Hill v. Iver Johnson Sporting Goods Co. 188 Mass. 75. Saxe v. Walworth Manuf. Co. 191 Mass. 338. Curtin v. Boston Elevated Railway, 194 Mass. 260. Thompson v. National Fireworks Co. 195 Mass. 327. Childs v. American Express Co. 197 Mass. 337. And in most cases of the unexplained starting of a machine, in which an action has been maintained for injuries thereby caused, there has been some further evidence of negligence on the part of the employer, either by evidence of previous instances of such starting, or of other trouble in operation, that were or ought to have been known to him, or that it was old, worn out, second-hand or otherwise in need of more inspection or repairs than it had received, or that it was improperly set up or adjusted, or that recent repairs had left it in bad condition, or otherwise. Donahue v. Drown, 154 Mass. 21. Mooney v. Connecticut River Lumber Co. 154 Mass. 407. Connors v. Durite *535Manuf. Co. 156 Mass. 163. Packer v. Thomson-Houston Electric Co. 175 Mass. 496. Gregory v. American Thread Co. 187 Mass. 239. Lynch v. M. T. Stevens & Sons Co. 187 Mass. 397. O’Neil v. Ginn, 188 Mass. 346. Fountaine v. Wampanoag Mills, 189 Mass. 498. Byrne v. Boston Woven Hose & Rubber Co. 191 Mass. 40. Ryan v. Fall River Iron Works Co. 200 Mass. 188. Donovan v. Chase Shawmut Co. 201 Mass. 357. But although in many of the above named cases the conclusion reached was supported by such additional evidence, yet in others the employer was held liable by reason merely of the unexplained starting. This was so for example in Byrne v. Boston Woven Hose & Rubber Co. 191 Mass. 40. In Mulvaney v. Peck, 196 Mass. 95, the court approached this doctrine. In Ryan v. Fall River Iron Works Co. 200 Mass. 188, the judge at the trial instructed the jury that if they were not satisfied as to what was the specific cause of the starting of the loom, which was the instrumentality there in question, yet if it did start suddenly from a position of rest when it had been properly stopped, that could be taken to show not only that there was some defective condition in the loom, but also that there was negligence in connection with that defective condition. This instruction was held to be correct; and the present Chief Justice, in giving the opinion of the court, declared that “ the unexplained automatic starting of a machine, when it ought to remain at rest ” stood upon a different basis from other causes of injury to employees, and elaborately explained the reasons for holding that negligence of the employer might be inferred in such a case from the mere fact of the starting. The reasoning of that decision has not been criticised by this court; on the contrary it frequently has been cited with approval. Donovan v. Chase Shawmut Co. 201 Mass. 357, and 205 Mass. 248, 252. Archer v. Eldredge, 204 Mass. 323, 325. Cormo v. Boston Bridge Works, 205 Mass. 366, 369. Sheehan v. Goodrich, 207 Mass. 99, in which the plaintiff failed to bring herself within the principle.

We are of opinion that the cases should have been submitted to the jury.

Exceptions sustained.