221 Mass. 276 | Mass. | 1915
These two cases were tried together; one brought by the minor plaintiff, who sued for personal injuries received by her while in the employ of the defendant, and the other for loss‘of services and expenses. They are considered together, as the right of the father is dependent upon the right of his daughter. Regan v. Superb Theatre, Inc. 220 Mass. 259, 261. The only exceptions taken at the trial were to the refusal of the presiding judge
The jury were warranted in finding that the minor plaintiff, who was born on August 29,1894, entered the employ of the defendant in its dry filling department in March, 1911; that after she had worked in this department from March, 1911, until July 17, 1911, on the last named day she was transferred to the rat poison filling department in the basement; that this department occupied spaces cleared temporarily among the packing cases which reached almost to the ceiling; that the windows there were high up and were nailed so that they could not be opened, and that the only ventilation was
The plaintiff testified that no other warning was given her, and no testimony appears in the record to the effect that this statement was not true. One Hadley, the superintendent of the defendant’s factory, testified “that he knew, before the plaintiff was put to work on rat poison, that it contained a considerable percentage of arsenic, which he knew was poisonous; that he prepared a label 'Calling it deadly poison; that he frequently saw the girls working -on the poison in the basement; that it never occurred to him that it might be inhaled, or that minors might be ignorant of the possible results that might follow from inhaling it; that he himself gave, or caused to be given, no warnings to any employees about how the same should be handled to avoid injury to themselves; that he simply told the foreman of the department to ‘inform them to be a little careful;’ that no special instructions were given about warning young girls; that he considered it the duty of the foreman to do this himself, and not to delegate it to the forelady; that respirators were furnished men who worked on mixing antiseptic and non-poisonous powders, but none was given to the sixteen to seventeen year old girls who were put to work on rat poison; that no fans or suction blasts that might draw off the poisonous dust were furnished because he ‘didn’t think they were necessary;’ that the only chance that there would be that plaintiff would be warned was through the foreman; that no notices, except as afore
From the plaintiff’s testimony it appeared that the day after she was set at work in the rat poison department she, with another girl who worked with her, "suffered from nose bleed, smarting eyelids, and thirst; that she laid these to her work on rat poison of the day before and told the forelady, who told her that all she had was a cold in the head, and convinced her that she was wrong; that the same symptoms reappeared when she worked on the rat poison later on, but would disappear as soon as she stopped,” and that in December "they became worse.” Later, on March 17, 1912, and until the fourth day of May following, she was laid up at home suffering from a rash and boils.
There was testimony from her medical witness, as also from those of the defendant, that her symptoms were consistent with arsenical poisoning from arsenic contained in the rat poison in which she had worked.
The defendant’s contention was that “All the conditions surrounding the plaintiff’s employment including the places where she did her work, the materials and implements with which she did her work, and the method or manner of doing her work, were the same throughout her entire employment by the defendant.”
The defendant further contends that upon all the evidence it cannot be asserted as matter of law that the plaintiff' could or would be poisoned by the inhalation of dust containing arsenic, and therefore that it is not bound to foresee results of which common experience would not warn it and which only a specialist would apprehend. See Hubbell v. Yonkers, 104 N. Y. 434. This contention finds no support in the law as applied to the facts of this case. As a matter of fact it knew that the compound contained a large percentage of arsenic; it knew that it was poisonous; it put a label upon the cans in which it was stored, calling the attention of those into whose hands the preparation might come to the fact that the contents of the container were a deadly poison. It knew that the plaintiff and a girl who worked with her became more or less ill as often as they worked in contact with the preparation and revived when relieved from so working. Surely these facts are not consistent with excusable ignorance of the danger to the health and life of infant employees lurking in circumambient poisonous dust.
As matter of law a master engaged in a business inherently dangerous to the life and health of employees is bound “to become
The defendant, admitting that a warning was not given, insists that a warning would have been of no avail because the plaintiff had no way of knowing that the inhalations might poison her, and because the purpose of a warning is to enable the employee to work in safety. But a warning of an unknown and unexpected danger affords also an opportunity to the employee to determine whether the contract of employment shall be enlarged to include what is to him a new situation, or whether it shall be abandoned. Considering the nature of a contract of employment, and in connection therewith the frequent hardship of the application of the doctrine of the assumption of the risk, it would seem that the later consideration is the basic reason for requiring a warning. It is not necessary that the person to be harmed or the form which the injury shall assume should have been foreseen. “It is enough that it now appears to have been a natural and probable consequence.” Hill v. Winsor, 118 Mass. 251. Ogden v. Aspinwall, 220 Mass. 100.
In the case at bar the jury properly could find that the defendant should have foreseen that injury in some form, at some time, probably would occur to some one of the persons engaged in what might be found to be to them a most dangerous business.
No error appears in the submission of the cases to the jury.
Exceptions overruled.
King, J.