Flynn v. Prince, Collins & Marston Co.

• Decision Date: 02 March 1908
• Citation: 84 N.E. 321,198 Mass. 224
• Parties: FLYNN v. PRINCE, COLLINS & MARSTON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 224

84 N.E. 321

FLYNN v. PRINCE, COLLINS & MARSTON CO.

Supreme Judicial Court of Massachusetts, Essex.

March 2, 1908

COUNSEL

John J. Cahill and Joseph F. Quinn, for plaintiff.

D. N Crowley, for defendant.

OPINION

LORING J.

We assume that the case was tried on the second count. That was a count at common law for not providing a safe place for the plaintiff in the course of her employment.

The arrangement of the dressing room adopted and maintained by the defendant was, or at any rate could be found to be, an extraordinary, dangerous and negligent one. To make a dressing room for its employés the defendant company inclosed a corner of the stitching room by carrying the partition wall over the shaft, leaving a foot and a half of the shaft on the dressing room side of the partition wall. Among the hooks which it put up for the employés to hang their working clothes on when not on duty and their street clothes when on duty, was one, and perhaps more than one, immediately over the shaft. The danger incident to this arrangement of the dressing room is apparent. It seems to have been recognized by the defendant, for it covered the shaft with a box. Added to this the machinery ran so smoothly that when the box was in place the shaft made no sound, or at any rate not enough to attract attention, if the plaintiff and two of her fellow employés are to be believed. The danger therefore was a hidden one, and for that reason not one which an employé assumed by agreeing to work in that factory.

It might be found that the box was likely to be left off and the shaft exposed while in motion, and that, if it was, such an accident as that here complained of would be likely to happen. These findings would warrant the conclusion that the defendant in maintaining such a dressing room for the use of its employés without warning them of the situation, had not used due care to furnish them with a safe place.

The defendant's contention is that it did its whole duty when it furnished the box to be used as a guard, and that if Jenness was negligent in leaving it off, his negligent act was the negligence of a fellow servant. In support of that it cites Wosbigian v. Washburn & Moen Manuf. Co., 167 Mass. 20, 44 N.E. 1058, and the rule laid down in Falardeau v. Hoar, 192 Mass. 263, 267, 78 N.E. 456.

The distinction between Wosbigian v. Washburn & Moen Manuf. Co. and the case at bar is this: In Wosbigian v. Washburn-Moen Manuf. Co., 167 Mass. 20, 44 N.E. 1058, the machine was not out of repair. Further, there was no hidden danger, for the guard was taken off when the gearing was oiled, and the gearing had to be oiled when the reducing rolls were changed, two or three times a day. The cause of the accident was the negligence of the operator in not putting back the guard when changing the rolls and oiling the machine. This was the negligence of a fellow servant. To sum up that case, the accident was caused by the negligence of a fellow servant in operating a dangerous machine which was in perfect repair and which had no hidden danger.

That is not...