Healey v. Perkins MaCh. Co.
| Decision Date | 22 October 1913 |
| Citation | 102 N.E. 944,216 Mass. 75 |
| Parties | HEALEY v. PERKINS MACH. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Philip
J O'Connell and John P. Halnon, both of Worcester, for plaintiff.
Chas C. Milton and Carl Blair, both of Worcester, for defendant.
This is an action of tort to recover for personal injuries sustained by the plaintiff while in the employ of the defendant occasioned by the breaking of an emery wheel during an attempt by the plaintiff and a fellow workman to grind a heavy casting upon it.
There was evidence that the plaintiff was in the exercise of due care. He was an experienced man and might have been found to have been doing his work in the usual way.
It could not have been ruled as matter of law that the plaintiff assumed the risk because he continued to work a few seconds after he saw that the emery wheel was 'wabbling.' Whether he appreciated the situation and comprehended the danger in so brief a time was a question of fact for the jury.
The cause of the breaking of the emery wheel was not left wholly to conjecture, and might have been found due to the negligence of the defendant. Under appropriate instructions (which it is stated in the exceptions were given) the jury might have decided that the cause of the irregular running of the emery wheel was the overheating of the babbitt metal at its bearing, a condition which had not changed substantially between the accident and the time of the examination by the witness who testified to that fact, which hardly could have happened in the few seconds of operation of the machine immediately before the accident, and which might have been discovered by efficient inspection. The defendant's first three requests rightly were denied.
The exception to the question put to the expert witness for his opinion as to the cause of the 'wabbling' of the wheel as testified to by the plaintiff must be overruled. It was not wrong substantially in form or substance. It may be assumed from the way in which the question is prefaced and appears in the exceptions that either the witness had heard the plaintiff's testimony or in some proper way it was made the basis of the question or the essence of it was stated hypothetically to him. If his answer was irresponsive or incompetent the defendant should have moved to have it stricken from the case.
The defendant's fifth request was this: 'If any negligent act of the plaintiff or the man Harness [the fellow workman] contributed in any way to the plaintiff's accident, the plaintiff cannot recover.' The defendant, in order to sustain its exception to the refusal to grant this request, must maintain that it ought to have been given essentially in the form requested, for the charge is not reported and it is said that proper instructions were given to which no exception was taken. Plainly if the defendant in this prayer had omitted all reference to the fellow workmen, it should have been given. The principle is too well settled to require the citation of authorities that where a plaintiff either by act or omission...
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