Pettingill v. William Porter & Son, Inc.
| Decision Date | 24 November 1914 |
| Citation | 107 N.E. 269,219 Mass. 347 |
| Parties | PETTINGILL v. WILLIAM PORTER & SON, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Starr Parsons H. Ashley Bowen, and A. B. Tolman, all of Lynn, for plaintiff.
Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.
The plaintiff, who was in the employ of an independent contractor, was injured while at work in the defendant's factory, by reason of his clothing being caught upon a revolving set screw which projected about half an inch and held in place a collar upon a line of shafting. He testified that he never had seen this shafting when not in motion, and did not know of the existence of the set screw before the accident. There was evidence to show that the set screw looked dirty and greasy and was covered with lint and oil. There was further evidence to show that when the shafting was at rest the set screw was in plain sight, if one looked at it, and that it could be seen indistinctly when the shafting was in motion.
The duty which an owner owes to the employé of an independent contractor, is the duty owed by an employer to his employé in such a case. It follows that as to the plaintiff, who was lawfully at work in the defendant's factory although he was at work for an independent contractor, the defendant owed him the same duty in relation to the permanent machinery and apparatus that it owed to its own employés.
The employé assumes all the obvious risks connected with his employment, but his contract does not contemplate the assumption of risks which are hidden and obscure. Accordingly, while the plaintiff was employed in the defendant's factory the latter was bound to warn him only of hidden dangers which the plaintiff could not reasonably have discovered and which the defendant knew or ought to have known. Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, 76 N.E. 1048; Crimmins v Booth, 202 Mass. 17, 88 N.E. 449, 132 Am. St. Rep. 468.
The question then arises whether the presence of the set screw was or was not an obvious risk. In the numerous cases of this kind which have been passed upon by this court it generally has been held that the danger arising from a set screw was an obvious one which could have been discovered upon reasonable inspection.
The plaintiff contends that the case is to be distinguished from those wherein it has been held that there could be no recovery because the plaintiff did not know of the existence of the set screw, or that it was covered with grease and dirt and so could not be distinctly seen when in motion; and also because there was evidence to show that projecting set screws were not in common use in that locality.
If we assume that the evidence appeared to show that projecting set screws were not in common use, and that this one could not be seen when in motion, still we are of opinion that upon all the evidence the defendant is not liable. Archibald v. Cygolf Shoe Co., 186 Mass. 213, 71 N.E. 315; Ford v. Mount Tom Sulphite Pulp Co., 172 Mass. 544, 52 N.E. 1065, 48 L. R. A. 96; McKenna v. Gould Wire Cord Co., 197 Mass. 406, 83 N.E. 1113. Even if such a screw is not in common use in factories in the locality, yet its use was not unlawful and the defendant owed no duty to change the permanent equipment or kind of machinery in the factory then regularly and permanently used by it. Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N.E. 789.
While the evidence in the case at bar differs somewhat from that in previous cases, still we do not...
To continue reading
Request your trial