| Mass. | Mar 7, 1908
We assume that the case was tried on the second count. That was a count at common law for not providing a safe place for the plaintiff in the course of her employment.
The arrangement of the dressing room adopted and maintained by the defendant was, or at any rate could be found to be, an extraordinary, dangerous and negligent one. To make a dressing room for its employees, the defendant company enclosed a corner of the stitching room by carrying the partition wall over the shaft, leaving a foot and a half of the shaft on the dressing room side of the partition wall. Among the hooks which it put up for the employees to hang their working clothes on when not on duty and their street clothes when on duty, was one, and perhaps more than one, immediately over the shaft. The danger incident to this arrangement of the dressing room is apparent. It seems to have been recognized by the defendant, for it covered the shaft with a box. Added to this the machinery ran so smoothly that when the box was in place the shaft made no sound, or at any rate not enough to attract attention, if the plaintiff and two of her fellow employees are to be believed. The danger therefore was a hidden one, and for that reason not one which an employee assumed by agreeing to work in that factory.
It might be found that the box was likely to be left off and the shaft exposed while in motion, and that, if it was, such an accident as that here complained of would be likely to happen. These findings would warrant the conclusion that the defendant, in .maintaining such a dressing room for the use of its employees without warning them of the situation, had not used due care to furnish them with a safe place.
The defendant’s contention is that it did its whole duty when it furnished the box to be used as a guard, and that, if Jenness was negligent in leaving it off, his negligent act was the negligence of a fellow servant. In support of that it cites Wosbigian v. Washburn & Moen Manuf. Co. 167 Mass. 20" court="Mass." date_filed="1896-10-22" href="https://app.midpage.ai/document/wosbigian-v-washburn--moen-manufacturing-co-6425723?utm_source=webapp" opinion_id="6425723">167 Mass. 20, and the rule laid down in Falardeau v. Hoar, 192 Mass. 263" court="Mass." date_filed="1906-06-19" href="https://app.midpage.ai/document/falardeau-v-hoar-6429477?utm_source=webapp" opinion_id="6429477">192 Mass. 263, 267.
The distinction between Wosbigian v. Washburn & Moen Manuf. Co. and the case at bar is this: In Wosbigian v. Washburn & Moen Manuf. Co. the machine was not out of repair. Further, there was no hidden danger, for the guard was taken off when the gearing was oiled, and the gearing had to be
That is not true of the case at bar. In the case at bar the arrangement of the dressing room could be found to be a negligent one unless the shaft was covered by the box. This box was not taken off in the daily operation of the machinery of the factory. Since the guard made safe what otherwise would be a negligently unsafe place, it was the duty of the defendant to keep the guard on or to give a warning if it was off. That duty of the defendant was the duty of an employer to provide a safe place for its workmen, and therefore is one which cannot be delegated.
Falardeau v. Hoar, 192 Mass. 263" court="Mass." date_filed="1906-06-19" href="https://app.midpage.ai/document/falardeau-v-hoar-6429477?utm_source=webapp" opinion_id="6429477">192 Mass. 263, has been cited by the defendant. Falardeau v. Hoar is a ease where an employee fell through an open trap door which was opened to take out ashes twice a week. The defendants, who were the owners of the building, asked for an instruction that they were not liable if their janitor was in the habit of using a settee as a guard when the trap door was open, and the accident was caused by the janitor’s neglect to set up the settee on the occasion in question, for that neglect was the neglect of a fellow servant. The only exception before the court was one taken to the refusal to give that ruling. That exception was overruled. The opinion in Falardeau v. Hoar goes farther, and states that the charge of the presiding judge was correct. The presiding judge told the jury that if the defendants knew that the settees were being used as guards and so were in the position of having furnished barriers, a failure to put them up was the negligence of a fellow servant. In addition, there is an implication in Johnson v. Field-Thurber Co. 171 Mass. 481" court="Mass." date_filed="1898-06-24" href="https://app.midpage.ai/document/johnson-v-field-thurber-co-6426443?utm_source=webapp" opinion_id="6426443">171 Mass. 481, 483, where guards had not been furnished, that if they had been furnished the failure to set them up in that case would have been the negligence of a fellow servant. In the earlier case of Young v. Miller, 167 Mass. 224" court="Mass." date_filed="1897-01-05" href="https://app.midpage.ai/document/young-v-miller-6425781?utm_source=webapp" opinion_id="6425781">167 Mass. 224, the trap door was not a hidden danger and the employee was held to have assumed the risk of it. In Hogarth v. Pocasset Manuf.
Exceptions overruled.