293 Mass. 538 | Mass. | 1936
The employee, a boy of sixteen, lost a finger in the gears of a machine. The gears were completely enclosed in a large solid metal gear case, sometimes called box or cage, with a sliding door opened by a knob. When first employed, eight days before the injury, as a sweeper and cleaner, the employee received printed rules for the prevention of accidents, and promised in writing to read and obey them. He signed also the following statement: “I am familiar with the rule prohibiting removal of gear cages and cleaning gears in motion . . . .” He was shown an open gear case, and was told of the danger that lay within.
On the day of the injury he was told to polish the gear cases on the outside with a white liquid polish and a handful of waste, and was again warned not to open the gear cases. The inside of the gear cases was constantly splashed with oil from the gears, and was never cleaned. The employee testified that some of the polish got into a crevice in one of the gear cases, and that in the attempt to wipe it out completely he intentionally opened the gear case, and was hurt. The board were not required to believe this testimony, and there is nothing to show that they did so.
Negligence on the part of an employee does not deprive him of compensation to which in other respects he shows himself entitled. Only “his serious and wilful misconduct,” resulting in the injury, has that effect. G. L. (Ter. Ed.) c. 152, § 27. Nickerson’s Case, 218 Mass. 158. Silver’s Case, 260 Mass. 222. Swardleck’s Case, 264 Mass. 495, 497, 498. Although the employee violated the rule and his instructions, it was not found that he did so wilfully. The board expressly found that he was not guilty of serious and wilful misconduct. The insurer does not complain of this finding.
But although guiltless of such misconduct, the employee in this case, in order to obtain compensation, must show that the injury was one “arising out of and in the course
The Superior Court was bound by that finding, for its authority in workmen’s compensation cases does not extend to the revision of findings of fact. It had no right upon the evidence or subsidiary facts to come to a different conclusion, unless such different conclusion was required as matter of law, as it was not. Di Giovanni’s Case, 255 Mass. 241. Korobchuk’s Case, 280 Mass. 412, 418. Seelig’s Case, 280 Mass. 466. Walsh’s Case, 281 Mass. 228, 231, 232. DePietro’s Case, 284 Mass. 381, 384. Di Clavio’s Case, ante, 259. See also Kasper v. H. P. Hood & Sons, Inc. 291 Mass. 24.
Decree reversed.
Decree for insurer.