Tenanty v. Boston Mfg. Co.

• Decision Date: 26 February 1898
• Citation: 49 N.E. 654,170 Mass. 323
• Parties: TENANTY v. BOSTON MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 323

49 N.E. 654

TENANTY v. BOSTON MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1898

COUNSEL

Chas.

H. Drew and Anson M. Lyman, for plaintiff.

Richard M. Saltonstall and George M. Cushing, for defendant.

OPINION

KNOWLTON J.

The plaintiff's intestate, while sawing hard pine boards longitudinally with an ordinary circular saw, was struck by a narrow strip of a board which remained after sawing from the board all the strips of the desired width, and which, through the negligence of an attendant behind the saw at the other end of the table, or from some other cause, came upon the teeth on top of the saw, and was thrown violently forward upon the plaintiff's intestate, injuring him so that he died. He had been in the service of the defendant as a carpenter for 10 years. It does not appear when the saw was procured or whether the risk from working it was one of the obvious risks of the business which he assumed by making the contract for service under which he was working at the time of the accident.

Before considering the questions in regard to the alleged negligence of the defendant and the care of the plaintiff's intestate separately, we properly may inquire whether it appears, as matter of law, that the plaintiff's intestate voluntarily assumed the risk of such an accident as happened looking at the condition of affairs while the work was going on. Under the decisions in this commonwealth, if he knew and appreciated this risk, and continued to work for the length of time and under the circumstances that appear in this case he must be held voluntarily to have assumed it; so that his share in responsibility for the accident charges him with negligence, and precludes him from recovery if the use of the saw by the defendant constituted negligence. If this appears, it is unnecessary to determine separately the questions whether the defendant was negligent, and whether the plaintiff was in the exercise of due care. Fitzgerald v. Paper Co., 155 Mass. 155, 29 N.E. 464; Mahoney v. Dore, 155 Mass. 513, 30 N.E. 366; Quigley v. Thomas G. Plant Co., 165 Mass. 368, 43 N.E. 205; O'Neil v. Keyes, 168 Mass. 517, 47 N.E. 416.

The risk that a strip of hard board which might fall upon the teeth of a rapidly revolving saw would be thrown violently forward was obvious to every one. The plaintiff's intestate could not have looked at the saw, and observed the rapidity of its...