215 Mass. 574 | Mass. | 1913
In the course of her employment in the defendant’s laundry, and while she was at work on a gteam ironing machine known as a mangle, the plaintiff sustained severe injuries by reason of her hand being drawn in between the rolls; and she brought this action to recover damages therefor. The declaration contains counts both at common law and under the employers’ liability act, but it is conceded by the plaintiff that the case was submitted to the jury on the common law counts. One of these was for alleged failure properly to instruct and qualify the plaintiff for her duty before putting her at work on a dangerous machine with
1. It is virtually conceded that there was evidence for the jury on the issue of the defendant’s negligence. He had just moved into his new location on Harding Street, and there was testimony that the mangle was working irregularly, first running fast and then slow; that the driving belt was moving from one pulley to the other; that there was unusual speed and vibration of the machinery until the pulley on the main shaft was changed after the accident, and that no instructions were given to the plaintiff as to how she was to do her work in safety. This, and other like testimony, if believed, would warrant a finding of negligence.
2. The defense of assumption of risk is not set up in the answer and consequently is not open to the defendant. Leary v. William G. Webber Co. 210 Mass. 68. Aside from the question of pleading, the defendant has the burden of proving this affirmative defense; and where, as here, the danger comes into existence after the contract of employment, this issue generally is one of fact for the jury. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. Griffin v. Joseph Ross Corp. 204 Mass. 477. That the plaintiff knew the machine was running fast or irregularly is not decisive, especially in view of the fact that she never before had worked on a mangle, and was injured when she had been working on this machine only an hour and a half. It was for the jury on all the evidence to decide whether the plaintiff fully comprehended the danger to which she was exposed and voluntarily assumed the risk. Glass v. Hazen Confectionery Co. 211 Mass. 99.
3. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care. She was seventeen years of age, with no experience in working on a steam mangle. Although
Exceptions overruled.
The case was submitted on briefs.
Lawton, J.