Walsh v. Boston and Maine Railroad

• Decision Date: 25 October 1933
• Citation: 284 Mass. 250
• Parties: JOHN J. WALSH v. BOSTON AND MAINE RAILROAD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 250

JOHN J. WALSH v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Suffolk.

October 25, 1933

February 10, 1933.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Negligence Employer's liability.

Failure by an employer to give to an employee instructions or warnings which, by reason of the employee's experience in the work in which he is engaged, are not needed for his protection, is not negligence.

An employer was not bound to furnish to an employee feeding fuel to and tending a steam boiler the best possible or safest bar with which to remove clinkers, but only to use care to provide one which was reasonably safe and proper for that use; and the furnishing to one experienced in that employment of a round pointed bar for that purpose instead of a chisel bar and a chisel hammer was held not to be negligent in the circumstances.

TORT. Writ in the Municipal Court of the City of Boston dated November 16 1931.

Upon removal to the Superior Court, the action was tried before Greenhalge, J Material evidence is described in the opinion. The judge ordered a verdict for the defendant and reported the action for determination by this court.

J. F. Daly, for the plaintiff.

F. P. Garland, (J.

DeCourcy with him,) for the defendant.

DONAHUE, J. The plaintiff was injured while in the employ of the defendant who was not insured under the workmen's compensation act. The declaration alleges in the first count negligence of the defendant in not warning him of dangers in the place where he was at work and in failing to provide him with a suitable place to work, and in the second count negligence of the defendant in failing to provide proper tools and appliances and to instruct him as to the use of the tools and appliances furnished. The trial judge directed a verdict for the defendant with the stipulation that if the direction of a verdict was proper, judgment should be entered for the defendant, otherwise that judgment should be entered for the plaintiff in a stated amount.

The plaintiff's duties required him to feed with fuel and to tend a steam boiler in the defendant's shops and included the removal of clinkers which might form in the boiler. At the time of his injury he was attempting with an iron bar with a round pointed end to break up or remove a large clinker three inches thick which had formed upon the grate; "he got this long pointed bar tangled in the clinker; . . . he started to release the bar and had his whole heft on the end, the back end of it, and it went right through the clinker and down he went, and knocked his hand against the iron front of the door" of the boiler causing him injury. The plaintiff was injured on the third day of his employment with the defendant. On the first day the fuel provided was soft black coal. A different fuel, which he termed "cinders," was supplied on the second and on the third days. He described it as a mixture of cinders and coal. There was other evidence that it was reclaimed coal from the residue in the ash pits in the different engine houses of the defendant where its locomotives were kept. The plaintiff testified that this fuel burned well when first put in the boiler but later iron ran out of it which formed clinkers on the grate, blocked the passage of air to the fire and caused the steam to drop, and that many more clinkers formed from this fuel than from the soft coal burned on first day. There was evidence that at and about the time of the plaintiff's injury the defendant was experimenting with different kinds of fuel.

Since the defendant was not...