219 Mass. 144 | Mass. | 1914
The plaintiff’s intestate was a sign painter, who had been long in the employ of the defendant. A trap door was in the room where he worked, closed all the time, except when opened, as it was frequently, for the purpose of raising and lowering signs through it, and at these times it was not guarded. He worked alone and the place of the trap door was light. One Foley came into this room, passed the deceased on his way to the trap door, opened it for some use and then, while he was engaged in conversation with the deceased about his work, the latter stepped backward and fell through the door, receiving mortal injuries. The deceased knew of the door and had opened it or used it, when open, many times during his employment.
There is no evidence of negligence on the part of the defendant. The trap door was a part of its permanent structure. Its existence and its method of use were well known to the deceased. The employer was under no obligation to change either its construction or its use, and the employee assumed this obvious risk as a part of his employment. McCafferty v. Lewando’s French Dyeing & Cleansing Co. 194 Mass. 412.
The employee knew that the trap door was liable to be opened at any time for its customary use. There was no obligation resting on the defendant to give a warning each time it was opened under these circumstances. McCann v. Kennedy, 167 Mass. 23. Young v. Miller, 167 Mass. 224. Carrigan v. Washburn & Moen Manuf. Co. 170 Mass. 79. If there was failure to give the notice commonly given of the danger, that was an act properly left, so far as concerned the defendant, to fellow servants of the deceased, for whose act the defendant would not be liable at common law. Falardeau v. Hoar, 192 Mass. 263.
The plaintiff contends that the injury arose because Foley was negligent in the performance of his duties as statutory superintendent. The testimony as to Foley’s work was that he was “the foreman of the sign makers;” that he “had full charge of
There was no testimony warranting a finding that Foley was exercising superintendence in the absence of a regular superintendent. Hence, cases like Carney v. A. B. Clark Co. 207 Mass. 200, are not in point.
In accordance with the terms of the report, let the entry be
Judgment for the defendant.