Cormo v. Boston Bridge Works, Inc.
| Decision Date | 01 March 1910 |
| Citation | 91 N.E. 313,205 Mass. 366 |
| Parties | CORMO v. BOSTON BRIDGE WORKS, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Coakley & Coakley Roland H. Sherman, and Wm. M. Hurd, for plaintiff.
Geo. W Buck, for defendant.
It may be assumed from the report that the plaintiff, who was described as domiciled in this commonwealth, was hired here by the defendant, which is stated in the writ to be a foreign corporation, having its usual place of business at Boston. The accident happened in the state of New York, where the plaintiff as its servant worked, helping to rivet an iron bridge in process of construction. The first and second counts of the declaration are under Rev. Laws, c. 106, § 71 now St. 1909, c. 514, § 127, for negligence of some person intrusted with superintendence, either in the direction of the work, or in neglecting to discover or remedy the defect in the works or machinery which is alleged to have caused the injury; while the third count is at common law, for failure to provide proper appliances and tools with which the plaintiff was to perform his work. At the trial no proof was offered of the foreign law, but the defendant apparently was content to rest its liability upon our law, both common and statutory, relating to its negligence and the plaintiff's due care or assumption of risk upon the issues raised by the pleadings. The action, however, being transitory, the defendant could be sued wherever found, and it is to be presumed in absence of evidence to the contrary that the common law of the place of the accident is the same upon the questions presented as our own, although this presumption does not arise as to the statutory law of a sister state. Callender, McAusland & Troup Co. v. Flint, 187 Mass. 104, 72 N.E. 345; Cherry v. Sprague, 187 Mass. 113, 72 N.E. 456, 67 L. R. A. 33, 105 Am. St. Rep. 381.
While building the bridge, the defendant established a compressed air plant in the vicinity to operate the pneumatic machines or hammers used to head the rivets after they had been heated and placed in position. The air from the compressor was transmitted through a metal pipe, which was connected with the hammer by a detachable rubber or cotton hose. In the cylinder, or barrel, is placed a detached, movable piston of steel about an inch in diameter and four inches in length; when the hammer is used, the air, which is admitted or shut off by means of a lever or trigger in the handle, controlled by the operator, forces the piston against the rivet on which a movable cap is placed, hammering and forming the end into a head. The plaintiff, as one of a gang of four men, used one of the hammers in riveting bolts. They worked in pairs, each taking his turn in holding and operating the hammer, while the other inserted the rivets. Of the remaining two one held the rivet in place by a dolly bar, as the head was being formed, while the fourth heated the rivets at a portable forge. It was not controverted that when the air was turned off by use of the trigger, the hammer or piston, if the machine was in proper working order, would be at rest, and there should be no danger from contact with it; but if the trigger was pressed or air admitted while the hammer was in juxtaposition with the rivet, the piston would be ejected with much force.
At the time of the accident, according to evidence of the plaintiff and his witness, the machine was held by a fellow servant, with his hand underneath, but not near the trigger, when the piston suddenly started, struck and destroyed the plaintiff's eye. A hammer properly constructed and in repair, after the air pressure had been turned off, would move only as the trigger was pressed, and unless some satisfactory explanation was offered by the defendant, the jury upon this evidence could find that it had become defective. Ryan v. Fall River Iron Works Co., 200 Mass. 188, 191, 86 N.E. 310; Silverman v. Carr,...
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