Kennedy v. Merrimack Pav. Co.
| Decision Date | 02 April 1904 |
| Citation | 185 Mass. 442,70 N.E. 437 |
| Parties | KENNEDY v. MERRIMACK PAV. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. & Wm. A. Hogan, for plaintiff.
F. E Dunbar, for defendant.
This is an action of tort for personal injuries sustained by the plaintiff while in the employ of the defendant. The declaration contained three counts. At the trial in the superior court the plaintiff elected to proceed upon the second and third counts. The second count was at common law for being set to work in an unsafe place. The third count was under St. 1887, c. 270, § 1, cl. 1, and alleged a defect in the condition of the ways, works, or machinery. At the close of the evidence for the plaintiff the judge directed a verdict for the defendant, and the case is before us on the plaintiff's exceptions to this ruling.
The plaintiff was a man 39 years old. He was a machinist by trade, and had been an engineer for 10 years before the injury, and was duly licensed as such under the laws of the commonwealth. At the time of the accident, June 20, 1902, the plaintiff had been employed by the defendant 9 days as an engineer. The defendant was a manufacturer of asphalt. Its plant was divided into three parts--the first where the asphalt was put into large kettles, underneath which fires were lighted and the asphalt liquefied. The other two parts were placed upon an ordinary flat car, about 45 feet long and 7 feet wide, located upon a spur track of a railroad. The boiler, air tank, and engine were at one end of the car, and at the other end were two steam jackets and a machine containing sand drums. These drums were about 3 feet in diameter and 20 feet in length. Between the engine and the steam jackets there was a rectangular space 3 1/2 or 4 feet wide, 6 feet measuring across the width of the car, 6 feet in height, and partly open at the top. In this space was the main shaft, 2 1/2 inches in diameter. It was about 10 feet long, and extended across and beyond the sides of the car. It rested upon bearings attached to the floor of the car, and was about 2 1/2 feet from the floor. On each end of the shaft, on the outside of the bearings, was a collar fixed and adjusted with set screws, and outside of these collars on each end of the shaft was a pulley about 4 feet in diameter; the one on the side of the car where the plaintiff was injured having a 12-inch face. On the main shaft, and just inside the bearing at this side of the car, was the hub of an old wheel or pulley, about 4 inches in length, measuring along the shaft, and of a diameter of about 4 inches, including the diameter of the shaft. There were five broken spokes sticking out of this hub from three-quarters of an inch to an inch and a quarter. The hub was attached to the shaft by a set...
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