Mellor v. Merchants' Mfg. Co.
| Decision Date | 01 January 1890 |
| Citation | 150 Mass. 362,23 N.E. 100 |
| Parties | MELLOR v. MERCHANTS' MANUF'G CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morton & Jennings, and J. Lowell, Jr., for appellant.
M. Reed and D.V. Sullivan, for appellee.
This is an action for personal injuries caused by a defect in the condition of the defendant's machinery. The plaintiff has had a verdict, and the question before us is whether it was warranted by the evidence. The plaintiff's case, as stated by himself, was as follows: He was 22 years old. He had followed the business of loom-fixing and weaving since he was 12, for the last year in the place where he was hurt, and was a loom-fixer at the time of the accident. He had charge of the pulleys on the looms, but had nothing to do with the shafting or the pulleys on it. About a week before the accident he noticed that the belt kept running off the pulley on the shafting, and notified Gillette, the man over him Thacker, the head of the machine-shop, and O'Gara, one of the men under Thacker. Gillette said he would see to it. On the afternoon of the accident the belt slipped off again, and the plaintiff saw that it had not been set right. He notified Gillette, and went to notify Thacker, but found only O'Gara. O'Gara had no authority over the plaintiff but told him to take a wrench, and move the pulley a little way. The plaintiff knew that the belt would slip off unless the pulley was changed, started to do it, and told Gillette that he was going to see what he could do with it. Gillette said, "All right." The plaintiff then built a staging, and, at a little before 6 P.M., was standing facing the belt, about 12 inches from it, looking up at it going round, with his left arm upon the planks, waiting for the machinery to stop, as it did at 6, when the belt came off again, and caught his left hand.
St.1887 c. 270, § 1, expressly requires the plaintiff to have been in the exercise of due care; but, for the purposes of the present case, we will assume that it was intended to abolish the defense that the plaintiff took the risk of the known dangers of the business, as an implied term of his contract of service, so far as this defense is peculiar to the relation of master and servant, or is made inequitable by reason of the parties not standing on an equal footing because of the servant's fear of losing a place. We will assume, further, that we cannot go behind the finding of the jury that the plaintiff used due care in his attempt to cure a defect that was known to be perilous, although there is some difficulty in seeing what need there was to put himself close to the source of danger when he knew that he could not work upon it until it was at rest, and did not intend to do so, and when he knew, also, that it would be at rest in a few minutes. But we were inclined to think at the argument that there might be cases where the plaintiff would be held to have taken the risk, irrespective of any implied term in his contract of service, even if he could not properly be said to have been negligent, and that this was such a case. We have been confirmed in our opinion by further reflection, and by finding that it had been so decided in England, under St. 43 & 44 Vict. c. 42, before our act was passed,--a fact the importance of which is shown in Ryalls v. Mechanics' Mills, 22 N.E. 766. In Thomas v. Quartermaine, L.R. 18 Q.B.Div. 685, L.R. 17 Q.B.Div. 414, the plaintiff had fallen into a cooling vat which had been left without a railing, and it was found that he had not been guilty of negligence. It appeared, however, that he had perfectly understood the danger, and had incurred it of his own motion, in the course of his work. It was held that he could not recover, because he had taken the risk upon himself, not by reason of his contract of service, but as one not a servant, and invited upon the premises on business of the employer's own, would have taken the risk if he voluntarily had put himself into the same situation, knowing and appreciating the danger. The statute does not put servants in a better position than that of the most favored persons who are not servants. It may be that a case like Thomas v. Quartermaine comes very near the line, because, if the servant is acting...
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