Taylor v. Newcomb Baking Co.

• Decision Date: 05 February 1945
• Citation: 59 N.E.2d 293,317 Mass. 609
• Parties: JAMES M. TAYLOR v. NEWCOMB BAKING COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 609

59 N.E.2d 293

JAMES M. TAYLOR v. NEWCOMB BAKING COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

February 5, 1945

December 7, 8 1944.

Present: FIELD, C.

J., QUA, DOLAN & RONAN, JJ.

Negligence Employer's liability: dangerous substance, assumption of risk, warning.

Evidence, at the trial of an action by an employee against his employer, not insured under the workmen's compensation act, that soap having a base of trisodium phosphate, provided by the defendant for use of the plaintiff in washing pots and trays caused him to suffer a dermatitis due to chemical irritation which was suffered by a "large percentage of people" in industry and which was "a common situation in a good class of people" and "known to be common amongst the trade"; that methods of protection by gloves and ointments were common in the industry; and that at the time of the employment of the plaintiff in 1941 he was inexperienced in such matters and was neither warned of the character of the soap nor given means of protection, warranted findings that the defendant knew or ought to have known of the danger of injury to the plaintiff, that the plaintiff did not know of such danger and that the defendant should have realized that he did not know of it, that the plaintiff had not "contractually" assumed the risk of injury, and that his injury was due to negligence of the defendant.

TORT. Writ in the Superior Court dated February 22 [sic], 1942.

The case was tried before Morton, J.

M. Rosenthal, for the plaintiff. A. W. Gilkerson, for the defendant.

QUA, J. This is an action by an employee against an employer not insured under the workmen's compensation law to recover for personal injury claimed to have been due to the effect of strong soap upon the plaintiff's skin.

At the time when the plaintiff was employed, "about March of 1941," and at the time of the alleged injury two or three weeks later, contractual assumption of risk was a defence, or speaking more accurately, it excused the defendant from the duty of care with respect to the risk assumed. Ashton v Boston & Maine Railroad, 222 Mass. 65 . Doherty v. Paul's for Tires, Inc. 314 Mass. 83 , 85. See now G. L. (Ter. Ed.) c. 152, Section 66, as appearing in St. 1943, c. 529, Section 9A. Contributory negligence was not a defence. G. L. (Ter. Ed.) c. 152, Section 66. After a verdict for the plaintiff the judge entered a verdict for the defendant on leave reserved.

The following is a summary of the significant evidence: The plaintiff was employed to wash pots and trays in the defendant's bakery. He had never done that work before. One Newcomb, the defendant's president, treasurer, and clerk, who acted for the defendant in hiring the plaintiff, "didn't have much to say." He "just showed" the plaintiff what work to do and how to do it and how much soap to put into the tank. Two or three weeks later the plaintiff spoke to Newcomb about a rash on his hands, and Newcomb said that the soap powder was "pretty strong," and that a previous employee had had trouble with it. After that Newcomb provided rubber gloves for the plaintiff. The plaintiff had never before had "the itch that he developed at the baking company." It "went right through . . . [his] system" and obliged him to go to a hospital. The soap had a base of trisodium phosphate. There was testimony by a physician specializing in industrial medicine that there is "quite a percentage of people" who are "so called hypersensitive individuals" who "many times" will develop an irritation from soap powder or any irritant; that in industry "we have a large percentage of people that suffer from a dermatitis due to chemical irritation"; that that "is a common situation in a good class of people" and "is known to be common amongst the trade"; that methods of protection by means of gloves and protective ointments "are common in the industry"; that the use of trisodium phosphate by the plaintiff would be an adequate cause for the dermatitis that he developed; and that he was "firmly convinced that this . . . [was] a typical picture of dermatitis venenata, chemical in nature, due to an irritant."

Plainly the jury could find that the plaintiff's condition was caused by the soap powder. The point need not be labored.

It was the defendant's common law duty to furnish the plaintiff safe materials with which...