303 Mass. 409 | Mass. | 1939
The plaintiff was injured while in the employ of the defendant and engaged in sawing wood with a “portable buzz saw” operated by a gasoline engine. His action to recover damages, brought in the Superior Court, was referred to an auditor under an order which did not make the auditor’s findings of fact final. After the auditor’s report was filed, however, the parties filed a written stipulation which provided that the findings of fact in the auditor’s report were accepted as final; that if, as matter of law, the plaintiff was entitled to judgment, judgment should be entered for the plaintiff in the sum found by the auditor; and that if, as matter of law, the plaintiff was not entitled to judgment, then judgment should be entered for the defendant with costs. Thereafter a judge of the Superior Court allowed a motion of the plaintiff and denied a motion of the defendant for the entry of judgment on the auditor’s report, and found for the plaintiff in the sum found by the auditor.
The defendant filed exceptions to the action of the judge on these motions and to his finding for the plaintiff. He also filed a claim of appeal. The general finding for the plaintiff made by the judge was in effect an order for judgment. Lawrence v. Old Silver Beach, Inc., ante, 377. Williams v. New Bedford, ante, 213, 216. Since the parties agreed that the auditor’s findings of fact should be final, the report constituted a case stated and the case is properly here on the defendant’s appeal. Pesce v. Brecher, 302 Mass. 211, 213, and cases cited. As we treat the case on that basis, it is unnecessary to deal with the defendant’s exceptions.
The following facts appear in the auditor’s report: The defendant was engaged in the business of selling fire wood.
About two weeks before the plaintiff’s injury the vertical board of the “trough” was found to be broken so that only about two inches of its original width of ten inches remained. The plaintiff told this fact to the defendant about a week before the accident. Nothing was done about it. The plaintiff continued to use the saw with the trough in that condition. At the time of the accident the plaintiff was gripping a stick of wood which was being sawed and pressing it against what was left of the vertical “trough board” so that it would be securely held while it was being cut. The stick of wood got caught in the saw with the result that the plaintiff’s hand came in contact with the saw.
The auditor found that there was a dangerous defect in that “the vertical trough board was mostly gone” and that the defendant, knowing this condition, negligently allowed it to continue without repair. He also found that the plaintiff continued to use the trough, knowing its dangerous condition.
The defendant was not insured under the workmen’s '
The “saw table” and “trough boards” had not been assembled by the defendant at the time the plaintiff first went to work for the defendant. This was done shortly thereafter. During the first three months after the hiring the plaintiff worked “irregularly” or "two or three days a week.” It is not clear on the record whether during those months there were successive contracts of employment made at the beginning of each of the short periods that he worked. 'But the auditor found that, during the last three months preceding his injury, the plaintiff worked regularly as business and weather conditions permitted. We think the inferences were warranted that during this latter period he worked under a continuing contract of employment and that the defect that caused his injury was not in existence when the period began. A finding was warranted that there was no contractual assumption of the risk by the plaintiff. McCarthy v. New York, New Haven & Hartford Railroad, 285 Mass. 211, 216.
The exceptions, and the appeal from the order denying the defendant’s motion for judgment on the auditor’s report are dismissed, and the orders for judgment for the plaintiff are affirmed.
So ordered.