Lavartue v. Ely Lumber Co.
| Decision Date | 19 October 1912 |
| Citation | 213 Mass. 65,99 N.E. 469 |
| Parties | LAVARTUE v. ELY LUMBER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
T. J. Lynch and T. B. O'Donnell, both of Holyoke, for plaintiff.
Brooks & Hamilton, of Springfield, for defendant.
The jury would have been warranted in finding, that when the defendant's superintendent called him from his ordinary labor and directed him to operate a circular saw, the plaintiff from want of previous experience was ignorant of the mode of operation; and that on the first day he worked about an hour and on the second day he was injured shortly after he began work. It was uncontroverted that near the end of the saw table a pile of refuse overtopped the table, and the jury could have found, that if the strips were sufficiently long they would be obstructed by the refuse which would cause them to twist or recoil. If this happened the hand of the operator guiding the strips in front of the saw might be brought in contact with it. The superintendent did not direct the plaintiff's attention to this condition, or give him any verbal instructions, but having on the first day passed one stick through, he gauged the saw, on the second day, and after passing through one stick and then three sticks which when sawed were to form one stick four inches in width, he ordered the plaintiff to continue the work. After sawing one set of sticks the plaintiff began upon the second set when as the plank or board passed the saw the strips came against the refuse, and being forced above the plane of the table their recoil threw or twisted his hand upon the saw.
The burden of proof where it is contended that the employé assumed the risk rests upon the employer. Leary v William E. Webber Co., 210 Mass. 68, 96 N.E. 136. At most the plaintiff assumed only obvious risks, and there is no evidence that the pile of refuse existed at the time of his employment, or constituted a permanent feature of the defendant's establishment. If it accumulated from the operation of the saw or other machines, and was removed occasionally, the plaintiff, even if in the exercise of ordinary care he should have seen it, could be found not to have understood that the strips might be obstructed, or appreciated the effect upon his personal safety. Fitzgerald v. Conn. River Paper Co., 155 Mass. 155, 29 N.E. 464, 31 Am. St. Rep. 537; Mahoney, v. Dore, 155 Mass. 513, 30 N.E. 366; Wagner v. Boston Elev. Ry., 188 Mass. 437, 74 N.E. 919; Jellow v. Fore River Shipbuilding Co., 201 Mass. 464, 87 N.E. 906; Griffin v. Joseph Ross Corp., 204 Mass. 477, 90 N.E. 926; Haley v. Lombard, 207 Mass. 545, 93 N.E. 633; Leary v. William G. Webber Co., 210 Mass. 68, 96 N.E. 136. By reason of inexperience, and the brief period of employment before the accident, and his right to assume that under the order he would not be exposed to unnecessary peril, the question of the plaintiff's assumption of the risk or whether he was guilty of contributory negligence was for the jury. Gomes v. New Bedford Cordage Co., 187 Mass. 124, 72 N.E. 840; Byrne v. Learnard, 191 Mass. 269, 77 N.E. 316; Reardon v. Byrne, 195 Mass. 146, 149, 80 N.E. 827; Boyd v. Taylor, 195 Mass. 272, 81 N.E. 277; Ruddy v. George F. Blake Mfg. Co., 205 Mass. 172, 181, 91 N.E. 310.
It is contended by the defendant that there was no evidence of the superintendent's negligence. The need of instructions however, was recognized or the process would not have been exemplified. The plaintiff, even if bound by his contract of employment to...
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