316 Mass. 259 | Mass. | 1944
The plaintiff was hired on November 7, 1938, as a cook by the defendant. She was requested to clean the kitchen and was told that if she needed any equipment or utensils the porter would tell her as “he knew where everything was to do work with.” The kitchen was located at one end of a hallway which led to the front of the house. This hallway was in the basement and was below the level of the sidewalk. It had no window. On the second day of her employment she started to clean the kitchen. She asked the porter for a pail. He told her that she would find
The defendant was bound to exercise reasonable care to have and maintain the premises in a safe condition for the use of the employee in the performance of the work she was hired to do, and the employee assumed the risk of the conditions of the premises that were apparent from a reasonable examination. If the conditions would not be revealed by such an examination, then the employer was under a duty to warn the employee of the dangers arising from such conditions. And the duty to keep the premises in a reasonably safe condition, to give warning of the dangers that might arise from conditions which the employee would not be likely to know, and to furnish proper utensils for the accomplishment of the work, was the personal obligation of the employer which she could not delegate to the porter or anyone else. Falardeau v. Hoar, 192 Mass. 263. Morena v. Winston, 194 Mass. 378, 384. Flynn v. Prince, Collins & Marston Co. 198 Mass. 224, 227. Grace v. United Society called Shakers, 203 Mass. 355, 357. Foley v. J. R. Whipple Co. 214 Mass. 499. Maddox v. Ballard, 218 Mass. 55, 59. Fitzgerald v. Young, 225 Mass. 116, 123. Cronan v. Armitage, 285 Mass. 520, 525. Wood v. National Theatre Co. 311 Mass. 550. Roberts v. Frank’s Inc. 314 Mass. 42.
The place where the plaintiff was injured could be found to be within the zone of her employment, and the failure to warn the employee that the room was without any floor
The defendant contends that the plaintiff is barred from recovery by her contractual assumption of risk. But the ' short answer to this contention is that the jury were not required to find that injury arose from any conditions that were known or ought to have been known to the plaintiff. Ashton v. Boston & Maine Railroad, 222 Mass. 65. Hietala v. Boston & Albany Railroad, 295 Mass. 186. Engel v. Boston Ice Co. 295 Mass. 428. Cotoia v. Seale, 306 Mass. 101.
The answer set up contributory negligence and voluntary assumption of risk. An employee does not voluntarily assume the risk of injury unless the employer upon whom the burden rests proves that the cause of the injury was so open and obvious that it was known to the employee and that the nature and character of the risk were such that the employee must have fully appreciated the danger that might arise therefrom. The plaintiff, however, is not shown to have had any knowledge of the conditions existing in the closet, so called, which in fact turned out not to be a closet at all. The failure of the defendant to furnish sufficient light in the hallway might well have been found to have been a factor in delaying the plaintiff from ascertaining the actual conditions until it was too late to avoid falling into the subbasement. On the evidence it is plain that the jury were not required to find that the plaintiff had voluntarily assumed the risk of falling into the subbasement. Barrett v. New England Telephone & Telegraph Co. 201 Mass. 117. Wilson v. Daniels, 257 Mass. 234.
The jury could find that the plaintiff had a right to rely to some extent on what the porter had told her and assume that she was stepping into a closet; that this assumption was strengthened by the position of the pail or hand basin which was at such a level as to indicate it was resting upon a floor; and that the light was sufficient to justify the
Exceptions overruled.
