Dagis v. Walworth Mfg. Co.

• Decision Date: 29 January 1913
• Parties: DAGIS v. WALWORTH MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 524

100 N.E. 620

DAGIS v. WALWORTH MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

Jan 29, 1913.

COUNSEL

Jas A. McGeough, of Boston, for plaintiff.

Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

OPINION

SHELDON J.

The jury could find that the plaintiff, while in the exercise of due care, was injured in consequence of the automatic starting of a machine upon which he had been set to work, at a time and under circumstances when it ought not to have started and would not have done so if it had been in proper repair and condition. That, if there was nothing more in the case, entitled him to go to the jury and warranted a verdict in his favor. Chiuccariello v. Campbell, 210 Mass. 532, 96 N.E. 1101, Ann. Cas. 1912D, 510. And see the cases there collected.

But the defendant contends that because the plaintiff, when ordered to go to work upon this machine, which according to some of the evidence had on previous occasions started automatically in the way now complained of, at first objected to doing so, but finally consented through fear of being discharged if he refused, he thereby accepted this more dangerous employment with its incidental risks, and thus assumed the risk of the very accident which happened to him, and so cannot recover therefor. Leary v. Boston & Albany R. R., 139 Mass. 580, 2 N.E. 115, 52 Am. Rep. 733; Wescott v. New York & New England R. R., 153 Mass. 460, 27 N.E. 10; Lamson v. American Ax & Tool Co., 177 Mass. 144, 58 N.E. 585, 83 Am. St. Rep. 267; Burke v. Davis, 191 Mass. 20, 76 N.E. 1039, 4 L. R. A. (N. S.) 971, 114 Am. St. Rep. 591. But the risks assumed by a servant who consents to work upon a dangerous machine under such circumstances are the risks of working upon such a machine in the condition in which it ought to be or in which it obviously is or is known by him to be. He does not assume the risk of injury from the presence of a hidden defect in the machine which is not communicated to him and which without fault on his part he does not perceive or apprehend. Ford v. Fitchburg R. R., 110 Mass. 240, 261, 14 Am. Rep. 598. This principle was applied in Martineau v. National Blank Book Co., 166 Mass. 4, 43 N.E. 513, to the stronger case of a servant undertaking to examine and repair a machine which he knew to be out of order. It could be found also that the second hand who put the plaintiff to work upon this machine was a superintendent within the meaning of St. 1909, c. 514, § 127, cl. 2, and was negligent in failing to give the plaintiff any instruction or warning. It follows that the first four requests of the defendant rightly were refused.

The fifth request was given, certainly in substance. The jury were expressly told that the plaintiff assumed all the obvious risks of the employment, and what was added about the automatic starting was correct.

As to the sixth request, there was evidence that the defendant put the plaintiff to work upon a machine which had a tendency to start automatically and with which the plaintiff had no acquaintance. There was a duty upon the defendant to warn and instruct him. If, as could be found, the defendant merely left him to learn from the men around him what to do, it cannot complain that he did what he thus learned. Moreover, there was evidence that it was the practice to oil the machine. The plaintiff so...