204 Mass. 477 | Mass. | 1910
The action is brought under R. L. c. 106, § 71, now by codification St. of 1909, c. 514, § 127. At the close of the plaintiff’s evidence a verdict was ordered for- the defendant, and the case is before us on a report.
It is plain, that there was ample evidence of the defendant’s negligence, and the only questions are, whether as matter of law the plaintiff either assumed the risk or failed to exercise due care.
The guard which protected the cogs of the mixer was a part of the defendant’s works and machinery when the plaintiff entered its employment. Donahue v. C. H. Buck & Co. 197 Mass. 550. By his contract of service, although he accepted the permanent appliances as he found them, he assumed no risk of injury from an unguarded mixer which in operation might endanger workmen while shovelling in the sand and cement. Mahoney v. Dore, 155 Mass. 513. Jellow v. Fore River Ship
We are unable to distinguish in principle the present case from recent decisions by which it must be governed, and where we have held that the plaintiff’s assumption of risk and want of due care were for the jury to determine. Counsell v. Hall, 145 Mass. 468. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. Mahoney v. Dore, 155 Mass. 513, 519. McKee v. Tourtellotte, 167 Mass. 69. McKinnon v. Riter-Conley Manuf. Co. 186 Mass. 155. Wagner v. Boston Ellevated Railway, 188 Mass. 437. Urquhart v. Smith & Anthony Co. 192 Mass. 257. Cahill v. New England Telephone & Telegraph Co. 193 Mass. 415. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11, 14. Baldwin v. American Writing Paper Co. 196 Mass. 402,407. Flynn v. Connecticut Valley Street Railway, 196 Mass. 587, 590. Berube v. Horton, 199 Mass. 421. Herlihy v. Little, 200 Mass. 284. Lynch v. Lynn Box Co. 200 Mass. 340. Hanley v. Boston Elevated Railway, 201 Mass. 55. O'Toole v. Pruyn, 201 Mass. 126. Shannon v. Willard, 201 Mass. 377. Jellow v. Fore River Ship Building Co. 201 Mass. 464.
In accordance with the terms of the report, judgment is to be entered for the plaintiff for the stipulated amount.
So ordered.