177 Mass. 151 | Mass. | 1900
This is an action to recover of the defendant for injuries sustained by the plaintiff while in its employment. The declaration contains four counts, the first three being under the employers’ liability act, St. 1887, c. 270, and the fourth at common law. The court ordered a verdict for the defendant on the first and second counts, and the jury returned a verdict for the plaintiff on the fourth count and for the defendant on the third count. The case is here on exceptions by the defendant to the admission of certain testimony, to the refusal of the court to give certain rulings that were asked for, amongst which was one that on all the evidence the plaintiff was not entitled to recover, and to the charge, first, generally so far as inconsistent with the requests; and, second, specifically in regard to certain particular matters.
None of the exceptions to the admission of evidence have been argued, and we therefore treat them as waived.
The substantial allegations in the fourth count are that the
We see no evidence, and the plaintiff has not contended that there is any, of negligence on the part of the defendant in not providing a safe and suitable place ^for the plaintiff to work in, or tending to show that the servants employed by it were incompetent.
Some of the instructions that were asked for were given in substance, and one, the third, became immaterial in consequence of the order of the court directing a verdict for the defendant on the first and second counts, and of the verdict of the jury for the defendant on the third count. For the same reason some of the specific objections to the charge became immaterial.
The case resolves itself, it seems to us, into the question whether there was any evidence of negligence on the part of the defendant in not providing safe and suitable tools, materials, and appliances for the work in which the plaintiff and those with him were engaged ; and if there was, whether the plaintiff was in the exercise of due care or assumed the risk. The defendant does not contend, and, as we understand the case, has not contended, that there was not evidence warranting a finding that the plaintiff was in the exercise of due care. If there was evidence of negligence on the part of the defendant, and the plaintiff did not assume the risk, we do not understand the defendant to contend that the instructions given to the jury were erroneous, or that they were not adapted to and did not fully cover the case. At least, our attention has not been directed by the defendant to any particular request which in that view of the case should have been given, or to any particular part of the charge which in that view of the case was erroneous and insufficient.
1. There was evidence tending to show that in driving bolts into the hubs of fly-wheels by means of a “ dolly bar,” a buffer of some sort was used for the purposes of receiving the blow and protecting the head of the bolt. Maynard, who, as much as any one, had charge of the work, and who had been in the defendant’s employ for many years, testified that they always used a buffer, and there was similar testimony from other witnesses
2. Neither do we see how it could have been ruled, as matter of law, that the plaintiff assumed the risk. The plaintiff was thirty years old, and for aught that appears was of average intelligence. But there was testimony tending to show that before the night on which he was injured he had never worked at driving bolts into fly-wheels, or had ever seen it done; and there was nothing in his previous history which necessarily tended to show that he was familiar with the kind of work which the defendant was doing. His work, as he testified, engaged his atten
Exceptions overruled.
