205 Mass. 172 | Mass. | 1910
It was the defendant’s duty to furnish suitable appliances for the plaintiff’s use in the performance of his work, and to keep them in proper repair. In the management of its business, while the supervision of details could be left to competent subordinates, this requirement could not so be delegated as
The car which caught the plaintiff’s hand and pinned it against the wall of the heated oven was operated by compressed air, admitted to the cylinder, and controlled by a valve. If in proper condition, it moved in or out of the oven at the will of the operator. After the plaintiff had mended the broken core it was placed on the car, and preparations were made to run the car into the oven, where the core was to be baked. The air having been turned on, the car started, but instead of moving steadily forward, after going a short distance it stopped. The air was then turned off, and the pet cock at the end of the cylinder was opened, and bars were used under the wheels to put the car in motion, when it suddenly shot ahead, causing the accident. Upon plenary evidence not only from the plaintiff’s fellow workmen, who were familiar with the use of the car, but also from experts who were fully acquainted with its mechanism, the car should have remained stationary after the air had been shut off with the pet cock open. But, these precautions having been taken, and the car having been operated in the usual way, the fact that it automatically started furnished evidence which unexplained tended to prove that the apparatus in some way had become defective. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 190, 191. Silverman v. Carr, 200 Mass. 396, 398,
The twentieth and twenty-first requests have not been argued, but if there was evidence that a leaky or defective valve would be a sufficient cause of the accident, the plaintiff was not limited to proof of this defect. Cahill v. New England Telephone & Telegraph Co. 193 Mass. 415, 418, and cases cited. The jury might have been satisfied that, unless the apparatus controlling the motive power was out of order, the car would not have moved. Ryan v. Fall River Iron Works Co., ubi supra. Silverman v. Carr, ubi supra. Gillis v. Cambridge Gas Light Co. 202 Mass. 222. It appeared, moreover, that for some time before the day
Under the second count the negligence of the defendant is alleged to consist in setting the plaintiff to perform work of whose dangers he was ignorant, but of which the defendant was informed, without giving him any warning of the perils of his position. By his contract of employment the plaintiff worked in the pasting department of the core room, where his duties required him to see that cores after having been baked were properly pasted and measured, but he was not required ordinarily to assist in operating cars, or to attend at the ovens. On the day of the accident a core while being carried from the moulding to the pasting department broke, and O’Donnell, the superinten dent of the core room, said to the plaintiff, “ there is a main core for a steam cylinder coming back, that broke in rolling off, and I want you to get it pasted as quick as you can and into the oven for the day’s heat.” It was undisputed that from the nature of the break and the temperature of the core great care would be necessary to adjust and keep the parts together until it could be placed on the car and run into the oven, where the heat would cause the parts to fuse and adhere firmly. In obeying this order, the defendant contends, that under each count it is not liable, because the plaintiff was a mere volunteer. He had been employed by O’Donnell, to whose direction and control he was subject, and who acted as the representative of the defendant in the management of the core room and the preparation of the cores for use, which included annealing. Feeney v. York Manuf. Co. 189 Mass. 336, 339. Reardon v. Byrne, 195 Mass. 146. Gilman v. Eastern Railroad, 13 Allen, 433. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11. The jury could find that the acts of the plaintiff in accompanying the core to the oven were necessary for its safe carriage, and were within the scope and exigency of the order. It appeared,
Nor could it have been ruled as matter of law that the plaintiff assumed the risk, or by his own want of care contributed to the injury. The evidence, if believed, very plainly showed no previous knowledge of defects which were not obvious, but concealed, or of any information which should have led him to anticipate, that the car might work improperly.
The defendant presented a large number of requests for rulings of which the judge gave the fourth in substance, but declined to give the other requests except as they were contained in the charge. It is unnecessary to take them up in detail. For reasons previously stated they were properly refused, and the instructions given, to a part of which the defendant also excepted, were correct and appropriate.
Exceptions overruled.