McCafferty v. Lewando's French Dyeing & Cleansing Co.
| Decision Date | 28 February 1907 |
| Citation | 80 N.E. 460,194 Mass. 412 |
| Parties | McCAFFERTY v. NEWANDO'S FRENCH DYEING & CLEANSING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Vahey, Innes & Mansfield, for plaintiff.
Walter I. Badger and Wm. H. Hitchcock, for defendant.
The plaintiff was employed by the defendant at 1 o'clock in the afternoon on the 18th day of May, 1903, and between 5 and 6 o'clock of the same day she met with the accident here complained of.
She was set to work with other girls mending curtains, in a room some 40 feet by 30 or 35 feet. Towards 5 o'clock she felt thirsty, and having seen two other girls get a drink of water from a tank, or pipe running into a tank, she went with two fellow employés to get a drink herself and fell into a hole between the tank and the floor. The tank was 9 feet in height and 5 feet in diameter. If was (as we understand the bill of exceptions) the section of a cylinder set on end. The bottom of the tank was 'set into a space 3 1/2 to 4 feet' below the floor in question. The top was therefore some 5 feet above the level of the floor. The hole in which this round tank was set was a square one, and there was a space of about 18 inches between the corner of the square hole and the round side of the tank. The employés were in the habit of getting water to drink as it ran from the pipe into the tank, the water in the tank not being fit to drink. Mrs Daley, who with Miss Conley was with the plaintiff (according to her testimony), first took a drink. Miss Conley asked the plaintiff if she wanted a drink; ahe said she did, and stepping one side to make it convenient for Miss Conley she fell into the hole.
The plaintiff testified that she did not see the hole but was looking up and not on the floor. Although the evidence was overwhelming that the place in question was well lighted there was some evidence that it was not. All the witnesses however testified that the hole would be seen by any one looking on the floor. On this evidence the presiding judge directed a verdict for the defendant. There were some questions of evidence which we shall state later on.
We are of opinion that the judge was right.
When the owner of real or personal property wishes to sell it, he does not have to make it a good thing of its kind but can sell it as it is for what it is worth.
Again, when an owner lets property to another in place of selling it, he is under no obligation to put it in repair or make it better, but can let it as it is.
The same principle applies when an employer hires a person to work in his factory. He is under no obligation to make the factory a better one or change it in any other way. The employé takes it as it is. Or, as it is usually said, he assumes all obvious risks. Whether the employé in fact does or does not know of the risk is not the question and is not material. He assumes all obvious risks, even though they be unusual ones. McLeod v. N. Y., N.H. & H. R. R., 191 Mass. 889, 77 N.E. 715, and it is for him to determine whether he will make an examination before going to work or will go to work without making an examination and take his chances. Rooney v. Sewall & Day Cordage Co., 161 Mass. 159, 36 N.E. 789.
It is only if the risk is not an obvious one that any duty is thrown on the employer, and the duty thrown on him in such a case is to give a warning.
On the uncontradicted testimony the hole in question in the case at bar would have been seen by any one who was looking on the floor. The case is very like Hoard v....
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