Dagis v. Walworth Manufacturing Co.

213 Mass. 524 | Mass. | 1913

Sheldon, J.

The jury could find that the plaintiff, while in the exercise of due care, was injured in consequence of the automatic starting of a machine upon which he had been set to work, at a time and under circumstances when it ought not to have started and would not have done so if it had been in proper repair and condition. That, if there was nothing more in the case, entitled him to go to the jury and warranted a verdict in his favor. Chiuccariello v. Campbell, 210 Mass. 532. And see the cases there collected.

But the defendant contends that because the plaintiff, when ordered to go to work upon this machine, which according to some of the evidence had on previous occasions started automatically in the way now complained of, at first objected to doing so, but finally consented through fear of being discharged if he refused, he thereby accepted this more dangerous employment with its incidental risks, and thus assumed the risk of the very accident which happened to him, and so cannot recover therefor. Leary v. Boston & Albany Railroad, 139 Mass. 580. Wescott v. New York & New England Railroad, 153 Mass. 460. Lamson v. American Axe & Tool Co. 177 Mass. 144. Burke v. Davis, 191 Mass. 20. But the risks assumed by a servant who consents to work upon a dangerous machine under such circumstances are the risks of working upon that machine in the condition in which it ought to be or in which it obviously is or is known by him to be. He does not assume the risk of injury from the presence of a hidden defect in the machine which is not communicated to him and which without fault on his part he does not perceive or apprehend. Ford v. Fitchburg Railroad, 110 Mass. 240, 261. This principle was applied in Martineau v. National Blank Book Co. 166 Mass. 4, to the stronger case of a servant undertaking to examine and repair a machine which he knew to be out of order. It could be found also that the second hand who put the plaintiff to work upon this machine was a superintendent within the meaning of St. 1909, c. 514, § 127, cl. 2, and was negligent in failing to give the plaintiff any instruction or' warning. It follows that the first four requests of the defendant rightly were refused.

The fifth request was given, certainly in substance. The jury were expressly told that the plaintiff assumed all the obvious risks o"f the employment, and what was added about the automatic starting was correct.

As to the sixth request, there was evidence that the defendant put the plaintiff to work upon a machine which had a tendency to start automatically and with which the plaintiff had no acquaintance. There was a duty upon the defendant to warn and instruct him. If, as could be found, the defendant merely left him to learn from the men around him what to do, it cannot complain that he did what he thus learned. Moreover, there was evidence that it was the practice to oil the machine. The plaintiff so. testified, and added, “You have to oil them first before you start to do anything.” If oiling or cleaning by the plaintiff was necessarily incident to the work assigned to him, an express direction by some one in authority from the defendant to do so was not called for. Manning v. Excelsior Laundry Co. 189 Mass. 231. Laplante v. Warren Cotton Mills, 165 Mass. 487. Accordingly the defendant’s sixth request rightly was refused.

The defendant was not harmed by what the judge said to the jury as to the plaintiff’s having been told to wipe off the oil from the machine. The defendant’s only argument as to this is that there was no evidence that any one in authority gave such a direction to the plaintiff. But as we have seen this was not necessary.

The testimony of the witness White as to the automatic starting of the machine on different occasions some weeks before the accident was not incompetent. It tended to show that the alleged defect had lasted so long before the accident that the defendant ought to have known of it and remedied it. Nor was it too remote as a matter of law. Todd v. Rowley, 8 Allen, 51. Post v. Boston, 141 Mass. 189, 193.

The exceptions to the other questions put to White and to those put to Budwites cannot be sustained. The court could find that the witnesses were competent to answer them, and the questions were not themselves improper. Arnold v. Harrington Cutlery Co. 189 Mass. 547. Moreover, the answers of the witnesses are not reported, and we cannot say that they were prejudicial to the defendant.

Exceptions overruled.