Mckenna v. Gould Wire Cord Co.

• Decision Date: 28 February 1908
• Citation: 83 N.E. 1113,197 Mass. 406
• Parties: McKENNA v. GOULD WIRE CORD CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 406

83 N.E. 1113

McKENNA v. GOULD WIRE CORD CO.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1908

COUNSEL

James E. Cotter and Edwin C. Jenney, for plaintiff.

John Lowell and James A. Lowell, for defendant.

OPINION

RUGG J.

There is nothing in the circumstances of this action to distinguish it in principle from the many other set screw cases in which defendants have been held not liable for injuries received by an employé. The subject has been so recently and fully discussed, with ample review and citation of authorities, in Mutter v. Lawrence Mfg. Co., 195 Mass. 517, 81 N.E. 263, that it is unprofitable now to traverse the ground again. Touching the dim light and necessity of stooping to go under the shaft, it can only be said that these were permanent conditions, obvious to the eye, and with which the plaintiff was or might have been familiar, and which were the same at the beginning of the plaintiff's employment as at the time of the accident. There was no legal obligation on the part of the employer to change his structure, although it would thereby have been rendered safer. One of the implied terms of the contract of employment was that the work should be performed with the permanent arrangements then existing. Gleason v Smith, 172 Mass. 50, 51 N.E. 460; Lemoine v Aldrich, 177 Mass. 89, 58 N.E. 178; Chisholm v. Donovan, 188 Mass. 378, 74 N.E. 652. The Legislature has made ample provision for the remedy of such unwholesome conditions as appear to have existed in the defendant's factory, but no step seems to have been taken to enforce liability under the statute. Rev. Laws, c. 104, §§ 41, 50 (see now St. 1907, p. 468, c. 503, § 2; chapter 537, § 5); Foley v. Pettee Machine Works, 149 Mass. 294, 21 N.E. 304, 4 L. R. A. 51.

The plaintiff was injured by the shaft of the blower which was started by the superintendent after he had sent the plaintiff on the errand, on his return from which he was hurt. It may be assumed that the act of starting the blower, upon all the evidence, was an act of superintendence. McPhee v. New England Structural Co., 188 Mass. 141, 74 N.E. 303. Although it was customary to announce, by oral or electric signal, the starting of the blower, yet this must have been for some other purpose than that of warning those in the basement that it was about to start, for the conditions were such that the usual warning could not be heard there. Therefore the plaintiff could not have relied upon its being given, and Carroll v. N. Y., N.H. & H. R. R. Co., 182 Mass. 237, 65 N.E. 69, and cases of that class are not in point. The plaintiff testified that while the blower was in use in...