219 Mass. 399 | Mass. | 1914
The plaintiff, an employee of the defendant, was engaged in the work of tearing down a bridge at Barre in the State of Vermont. At the time of the accident he was holding by the handle a wedge-shaped cutter which rested upon a rivet that was being severed, while a fellow workman, one Olmstead, was striking the cutter with a heavy hammer. We assume that, the jury could find that the plaintiff was in the exercise of due care, and that the piece of. steel which struck him in the eye came from the cutter.
The other counts are at common law. The first alleges that the defendant negligently furnished the plaintiff with unsafe, defective and dangerous tools; and the second, that it negligently set him at a dangerous work without proper instructions or warning.
The facts, as they might be found in the view of the evidence most favorable to the plaintiff, are as follows: He was a man of large experience in the work he was doing at the time of the accident, and was fully acquainted with the danger arising from pieces of steel flying off the tools. The defendant supplied for the work a number of cutters in apparently good condition, and from these the plaintiff’s fellow workman selected the one that later caused the injury. It was a tool of simple construction and easily understood. In its ordinary use the head of it was bound to become battered, flattened out and curled over by blows from the five or six pound hammer, especially when the blows were struck on the
The law of Vermont applicable to these facts, so far as the issue of the defendant’s' negligence is concerned, is presumably the same as that of Massachusetts, as no evidence was introduced to the contrary. On this issue the duty of the defendant under the first count was to provide its employees with reasonably safe tools. If it provided a sufficient supply of these within convenient reach, and permitted the plaintiff and his fellow workmen to select therefrom as they saw fit during the progress of the work, its common law duty in this respect was performed. Needham v. Stone, 186 Mass. 565, and cases cited. Cunningham v. Blake & Knowles Steam Pump Works, 208 Mass. 68. The duty to warn or instruct the plaintiff, on which the second count is framed, existed only where it was reasonably required for his safety on account of the dangerous character of the work as known to the defendant or by reason of the inexperience of the plaintiff. There was no duty to instruct an experienced man that a piece of steel may be broken off a battered cutter by the heavy blow of a hammer when, judging by his experience, he was fully aware
We are inclined to say that the order of the trial judge directing a verdict for the defendant was warranted also as to the first count, on the ground that no negligent failure to supply the plaintiff with proper tools was shown. However that may be, we are of opinion that the plaintiff assumed the risk of the injury, and cannot recover on the first count for that reason. On this issue evidence was introduced to show that the law of Vermont, on which the plaintiff’s right of recovery depends, is quite different from the law of this Commonwealth. Here the burden is on the defendant to allege and prove that the plaintiff assumed a risk which came into existence subsequent to the contract of employment. Leary v. William 6. Webber Co. 210 Mass. 68. But by the common law of Vermont, as proved at the trial, an employee assumes not only the risks ordinarily incident to his employment but such unusual and extraordinary risks as he knows and comprehends. And the burden is on him to prove as part of his case that he did not know and comprehend the danger. Brainard v. Van Dyke, 71 Vt. 359. Dunbar v. Central Vermont Railway, 79 Vt. 474. Hatch v. Reynolds, 80 Vt. 294. McDuffee v. Boston & Maine Railroad, 81 Vt. 52. This affects the right of action, and does not relate merely to the matter of evidence or procedure. Morrisette v. Canadian Pacific Railway, 76 Vt. 267. The plaintiff introduced no evidence that he did not appreciate the danger of a piece of steel flying. On the contrary there was ample testimony that he fully realized this danger. He knew that “sometimes, in cutting, the men would hold a piece of board or a hat over the end or near the end to keep it from flying, so that the head- of the rivet wouldn’t hit us in the face.” He testified: “It is the duty of the striker to keep his eye on the cutter, to hit. Otherwise, if the striker varies a little, he is liable to slip out on the edge of the cutter, clip the edge of the cutter.” Again: “At twelve o’clock ... I saw that the force of the blows I was giving [he was then swinging the sledge] on the head of the cutter was having its effect upon the head, — flattening it,
Exceptions overruled.
The case was submitted on briefs.
The action was tried before Bell, J., who at the close of the evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.