205 Mass. 248 | Mass. | 1910
The plaintiff was sixteen years old at the time of his injury. In an action growing out of the same injury the plaintiff’s father was permitted to hold a verdict in his favor. Donovan v. Chase-Shawmut Co. 201 Mass. 357. The plaintiff was unfamiliar with machinery until he entered the employ of the defendant about a week before receiving the injury, and had worked upon the press less than two hours the night before, and about three quarters of an hour on the morning of the accident. The machine was designed to be started by a treadle, but it would start and repeat sometimes when the treadle was not used.
The question of the plaintiff’s due care was for the jury. He was young and inexperienced. He was put at work without warning on a machine, which by reason of automatic starting may have been found to have been defective. Rudberg v. Bowden Felting Co. 188 Mass. 365. Boyd v. Taylor, 195 Mass. 272; S. C. 202 Mass. 213.
The danger of automatic starting could not have been discovered by an ordinary person on inspection. It was therefore not assumed by the contract of employment, and the duty was cast upon the defendant to give such warning and instructions as would enable the plaintiff to comprehend the peril he would encounter in the course of his service. Ryan v. Fall River Iron Works, 200 Mass. 188. Crimmins v. Booth, 202 Mass. 17.
The defendant strongly contends that upon the record now before us it appears that the plaintiff fully understood and appreciated all the risk he encountered, and that as he continued in the employment without compulsion or exigency he cannot recover. O'Toole v. Pruyn, 201 Mass. 126. Ho warnings whatever were given to the plaintiff as to the repeating or starting from a state of rest by the machine. He testified that the machine was not a simple one to him, that it had repeated, (that is, the knife on it had come down two or more times when the treadle was pressed only once,) five or six times on the night before, and twice in the morning, and that, on the night before, it had come down once or twice without pressure on the treadle, that the reel from which the copper wire was fed into the cutting press was so constructed that it required constant attention to prevent the copper from spreading out, and that sometimes the
Accent upon a part of the plaintiff’s testimony to the exclusion of the rest indicates a comprehension of the danger he incurred, but the answers relied upon as decisive against the plaintiff came on a cross-examination, in which some of the questions were so phrased as to appear to refer to the time of the trial, others were in this regard ambiguous, and still others, by a trifling change, referred to the time of the accident six or seven years before. Under such circumstances, whether the plaintiff’s expressions apparently manifesting appreciation of danger were intelligent assertions of a knowledge possessed at the time of the injury or the result of acute cross-examination directed to a wearied or confused intellect and eliciting acquiescence to skilfully framed questions was a proper subject for consideration by the jury. Doolan v. Pocasset Manuf. Co. 200 Mass. 200, 203. Picquett v. Wellington-Wild Coal Co. 200 Mass. 470.
The plaintiff suffered harm from the concurrence of a badly operating reel and an automatically starting press, both of which point to a failure of duty on the part of the defendant, in combination with the slipping of the hand in the performance of his duty, and all occurring in an expérience upon the machines of less than three hours, two of which were at night, and without any warning having been given him as to the dangerous character of the employment. That under these circumstances and within so brief a time an inexperienced lad of sixteen, such as
There was sufficient evidence to require a submission to the jury of the defendant’s negligence. This point is disposed of by Donovan v. Chase-Shawmut Co. 201 Mass. 357.
Exceptions sustained.