Garber v. Levine

• Decision Date: 10 January 1925
• Citation: 250 Mass. 485,146 N.E. 21
• Parties: GARBER v. LEVINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 485

146 N.E. 21

GARBER

v.LEVINE.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1925.

Exceptions from Superior Court, Suffolk County; Frederick W. Fosdick, Judge.

Action of tort by Abraham D. Garber against Isaac Levine, to recover for personal injury while engaged in defendant's employment as a baker. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Jas. H. Vahey, Philip Mansfield, and Bernard Beerman, all of Boston, for plaintiff.

Curtin, Poole & Allen and Asa S. Allen, all of Boston, for defendant.

PIERCE, J.

This is an action of tort for personal injuries, sustained by the plaintiff while engaged in the employment of the defendant. The defendant was not insured under the Workmen's Compensation Act (St. 1911, c. 751, amended by St. 1912, c. 571). At the close of the evidence, the defendant moved that a verdict be directed for him upon all the evidence. This motion was denied by the court and the defendant duly excepted.

Putting to one side all testimony unfavorable to the alleged cause of action, the remaining testimony in support of the contention of the plaintiff that there was on his part no contractual assumption of risk, and that the negligence of the defendant in failing to furnish and maintain a reasonably safe place for the plaintiff to work was the direct cause of the personal physical injury for which he seeks damage of the defendant, the jury warrantably could find the facts which follow. On November 14, 1920, the plaintiff was in the employment of the defendant as a baker, at 84 Arlington street, Chelsea. He worked upon a dough mixing machine, standing upon a platform in front of the machine. He had worked at the same occupation and in the same place for about one year, the last two months for the defendant, before then for one Rose. When he worked for Rose he did the same kind of work in the same dough mixing machine and on the same platform as when he worked for the defendant. When the defendant bought out Rose, the same dough mixing machine that had been used by Rose was afterward used by the defendant and the machine was at the same place in the shop when Rose was there as it was when the defendant was there. The platform was used in just the same way while Rose was there as while Levine was there. The bakery is in a basement and the oven opens into the basement. The floor was always clean when Rose was the owner of the shop. The defendant did not keep the shop clean, the floor was frequently slippery due to moisture and dirt, and the platform became slippery frequently from the wet soles of the shoes of the plaintiff as he went back and forth carrying water from the sink to the machine. About 7 o'clock on Saturday night, before the accident, which occurred on Sunday morning at three o'clock, he told the defendant that the floor was wet and that the defendant ‘should spill sawdust to make it right.’ The defendant replied: ‘Go ahead, I must have my work, I am late. I must have my bread at 5 o'clock. I am busy, go ahead, do your work.’ The platform got wet from his going up and down upon it. As he stood on the platform the top of the dough mixing machine came about two or three inches above his waist line. The whole top of the machine is open, there is no covering at all over the top. He started and stopped the machine as he did the work and he could see anything inside the machine when it was running. There are two arms of an agitator inside the machine, and as they come up and revolve away from one standing in front of the machine they go within 15 to 16 inches of the top of the tank, and within three-eighths to one-half inch of the side walls of the inside of the tank.

It further appeared in evidence that just before the accident the platform and floor were more slippery than they were at 7 o'clock; that it was more difficult in walking from the dough mixing machine to the bench and back again at that time that at the beginning of the evening; that at the time of the accident the plaintiff was standing on the platform in front of the dough mixing machine; that there was a bag of flour standing near; that he took some flour in his hands from this bag and spread it over the dough; that he did this twice; that ‘then the third time,’ as the plaintiff described the sequence of events, ‘I took some flour from the bag in my hands and intended to spread it over that dough in the machine when I slipped, and when I slipped one of my hands fell in the side of the machine and cut my finger off.’ The defendant contradicted the statement of the plaintiff that he made complaint as to the condition of the floor, and testified that the floor ‘was never wet,’ that the ‘floor of the shop was dry,’ that ‘at the time the accident happened the floor was clean and dry,’ and that ‘the platform was dry.’

[1] It is evident it does not lie in the mouth of the defendant to contend that the plaintiff contractually assumed the risk of a physical condition of the premises which he denies existed when the plaintiff entered the employment of the defendant. The plaintiff's action in...