290 Mass. 448 | Mass. | 1935
The plaintiff was a mechanic’s helper with six years’ experience in the employ of the defendant, which was not insured under the workmen’s compensation act. Sylvain v. Boston & Maine Railroad, 280 Mass. 503, 505. Walsh v. Boston & Maine Railroad, 284 Mass. 250, 251. Cronan v. Armitage, 285 Mass. 520, 524. He began work at three o’clock in the afternoon on the day of his injury, and had a supper period from seven until half past seven. During the supper period he was expected to remain on call for emergency work. He was working under one Gray, the foreman. He had a locker for his clothes. Just before the supper period Gray complained to the plaintiff about the condition of his overalls and locker, to which he said “they” objected. Gray said, “these dirty, greasy overalls
The substance which Gray provided for the plaintiff to use was not the mild household cleaning compound called Oakite, but Okemco, a heavy duty cleaner made by the Oakite Products, Inc., containing a large quantity of caustic soda, and used by the defendant to clean greasy locomotive parts. The plaintiff was ignorant of its properties, and was given no warning. In using it during his supper period his eyes were seriously injured by the dangerous chemical contents of the compound.
The question is whether the judge was right in directing a verdict for the defendant upon the evidence already summarized.
The fact that the plaintiff remained on the premises during his supper period and did something not absolutely required by his contract of employment, did not as matter of law change his status from that of a servant to whom the defendant owed the duty of reasonable care (Cronan v. Armitage, 285 Mass. 520; Demaris v. Van Leeuwen, 283 Mass. 169), to that of a mere licensee entitled only to freedom from wilful, wanton or reckless injury. While on the master’s premises, a servant may be within his employment although he has not begun work or has stopped work. White v. E. T. Slattery Co. 236 Mass. 28, 34. Olsen v.
It could be found that Gray, in giving directions to the plaintiff and in providing the cleansing material, was acting within the scope of his employment for the defendant. Furnishing the plaintiff a powerful and dangerous chemical compound, without warning him of its nature, could be found to be negligence, whether Gray actually knew of its nature or not. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231. Maddox v. Ballard, 218 Mass. 55. Carpenter v. Sinclair Refining Co. 237 Mass. 230. Harvey v. Welch, 86 N. H. 72. Louisville & Nashville Railroad v. Gilliland, 220 Ky. 431; S. C. 53 Am. L. R. 386. Robinette
There was error in directing a verdict for the defendant. In accordance with the terms of the report, judgment will be entered for the plaintiff in the sum of $7,500.
So ordered.