Cullalucca v. Plymouth Rubber Co.
| Decision Date | 06 April 1914 |
| Citation | 104 N.E. 956,217 Mass. 392 |
| Parties | CULLALUCCA v. PLYMOUTH RUBBER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D. H Coakley, of Boston, and J. G. Walsh, of Lawrence, for plaintiff.
Edward I. Taylor, of Boston, and J. W. Britton, of Hartford, Conn for defendant.
1. The defendant, under the provisions of St. 1913, c. 716, § 3, has moved for leave to amend its answer by setting up the defense that the plaintiff had assumed the risk of the accident that happened to him. We are of opinion that upon the facts of this case any such assumption of the risk must have been a contractual assumption of the open and obvious risks involved in the employment, and must have been made when the plaintiff entered upon the employment. It was not such an assumption as was considered in Leary v. William G. Webber Co., 210 Mass. 68, 96 N.E. 136; Flaherty v. N.Y. C. & H. R. R R., 211 Mass. 570, 98 N.E. 606; Lavartue v. Ely Lumber Co., 213 Mass. 65, 66, 99 N.E. 469; and Oswald v. Donohue, 215 Mass. 574, 102 N.E. 925. Here the question bears directly upon the duty owed by the defendant to the plaintiff, and comes under the doctrine that an employer is not bound to change the conditions manifestly existing when a contract of employment is made. Rivers v. Richards, 213 Mass. 516, 519, 100 N.E. 745, and cases there cited. It follows that the amendment is needless, and the motion is denied.
2. Coming to the merits of the case, the first question is whether there was evidence that this accident was caused by the negligence of the defendant. The plaintiff contends that, while he was carrying a roll of cloth in the usual and proper manner over the spreader from the front to the rear of the machine, the speed of the machine was suddenly increased, and that the result of this increase was to throw the cloth over the pipe upon the shaft, so that it became caught there and wound around the shaft, and drew with it his hand and arm, and caused him serious injury. That is, the point which he makes is that the accident was due to the sudden increase of speed, in the first instance. As to this increase of speed, he makes two contentions. In the first place, he contends that the sudden and unexplained increase of speed in such a machine as this, while it is being operated in the usual and proper manner, comes under the same rule as the sudden and unexplained starting into motion from a position of rest of a machine which ought to remain still. In the latter case, it is now settled that such an occurrence, the sudden starting of a machine which ought to remain at rest, resulting in injury to one who has the right to suppose that it will remain still comes under the rule of res ipsa loquitur, and if unexplained affords evidence, not only that there is a defect in the machine, but also that there has been negligence on the part of the employer who supplies the machine. Chiuccariello v. Campbell, 210 Mass. 532, 96 N.E. 1101, 44 L. R. A. (N. S.) 1050, Ann. Cas. 1912D, 510, in which some of the earlier cases are collected; Cook v. Newhall, 213 Mass. 392, 394, 395, 101 N.E. 72. The failure of an effort to stop a machine by the proper use of the apparatus provided for that purpose was held in Filosi v. Boston Woven Hose & Rubber Co., 214 Mass. 048, 101 N.E. 969, to come under the same rule. But in our opinion that rule ought not to be extended to cover a case like the one now presented. The rule itself, as was pointed out in Ryan v. Fall River Iron Works Co., 200 Mass. 188, 193, 86 N.E. 310, 312, was established because 'the court would not be justified in saying that the jury might not find, as men of experience in common affairs of life, that such a machine does not ordinarily start automatically without some negligence of omission or commission on the part of the employer, and that the existence of such negligence is the rational explanation of the starting.'
But the case at bar in principle corresponds more nearly to Ridge v. Boston Elev. Ry., 213 Mass. 460, 462, 100 N.E. 667. This machine was operated by means of power transmitted to it through a system of shafting. Manifestly there were many influences which might vary or affect its speed, with more or less suddenness. And many of these influences would be wholly independant of any negligence on the part of the defendant. A change in the load put upon the main shaft by the stopping or starting of other machines to which power was transmitted from that shaft might at once cause a greater or smaller amount of power to be concentrated upon this machine and so accelerate or reduce its speed of operation. When it was first started, its speed naturally would increase until it had reached a maximum; and this increase might be, not regular or steady, but by a series of jerks or impulses, as the power supplied from the central source might be increased or as the load put thereon might be diminished. If this is left uncertain, in other words if a sudden increase of speed is left unexplainedIt might be due either to negligence for which the employer would...
To continue reading
Request your trial