290 Mass. 219 | Mass. | 1935
This is an action of tort wherein the plaintiff seeks to recover damages for personal injuries sustained by him, on or about June 18, 1929, while employed by the defendant at its car shop in Readville, Massachusetts. The case was tried in the Superior Court to a jury on three counts, each of which alleged that the defendant was engaged in interstate commerce, and on a common law count for negligence of the defendant, its agents and servants. The defendant was not insured under the provisions of the workmen’s compensation act. The plaintiff abandoned the three counts under the Federal employers’ liability act and relied on the common law count in his amended declaration. The answer of the defendant, in substance, contains a general denial, an allegation that the plaintiff gave a general release for a valuable consideration which discharged and released the defendant from all claims on account of any injuries received by the plaintiff while employed by the defendant company on or about June 21, 1929, and allegations of contributory negligence of the plaintiff and of a contractual assumption of the risk which resulted in the accident to the plaintiff. At the conclusion of the plaintiff’s evidence, subject to the objection and exception of the plaintiff, the judge, on motion of the defendant, directed a verdict for the defendant.
There is no evidence in the record that the plaintiff ever gave notice to the defendant in any form that he claimed damages for his injury under G. L. (Ter. Ed.) c. 153, and no evidence or claim by the plaintiff that the wrench which was furnished was other than perfect of its kind. The
There is nothing in the record other than the plaintiff’s lack of familiarity with the English language to show that he did not have a full and complete appreciation of the fact that the wrench furnished did not fit snugly upon the sides of the caps the moment he applied the wrench, and he does not contend otherwise. He had been engaged for years in tightening or loosening caps on locomotive boilers. The risk that a wrench, which did not fit snugly a nut or a cap, might slip when pressure was applied to it must have been obvious to him and to any employee engaged in the same kind of work. Manifestly he had as much knowledge of the danger of a loose fitting wrench slipping when used as his employer or his foreman had and needed no warning or instructions of the danger attending the use of such a tool. The plaintiff apparently recognizes in his brief that the evidence shows a knowledge and appreciation on his part of the danger which attended the use of the particular wrench, and seeks to avoid its common law legal consequence by the claim that the order of the foreman, “You go and do that job, finish that job this afternoon. Get you wrench tomorrow morning. What the ... do you think I do,” required him “to use a negligent and dangerous method”; that there was compulsion in the order; that there was an element of haste and hurry; that the natural effect of the foreman’s language was to frighten the plaintiff; that this “danger was not one which grew naturally out of the employment or was subject to it”; and that “The danger in this case was owing wholly to an isolated act of carelessness on the part of a foreman.” We think that the foreman’s direction to the plaintiff to return to his work in the circumstances was not negligence. Williams v. Churchill, 137 Mass. 243. As the plaintiff has no common law right of action, it becomes unnecessary to consider his exceptions relating to the release which was set up in the answer of the defendant. The verdict for the defendant was directed rightly.
Exceptions overruled.