Foley v. Pettee Machine Works

Morton, C. J. It is admitted that the plaintiff cannot recover under the St. of 1887, c. 270, because he failed to give notice of his injury to the defendant, as required by § 8 of that statute. He claims that he is entitled to maintain this action at common law. [297] If we assume, without deciding, that the statute does not affect the liability of an employer which existed at common law before its passage, yet we are of opinion that the plaintiff is not entitled to recover. He was a man of mature years, accustomed to the use and management of machinery, and had worked upon machinery for the defendant for five years. He was injured by accidentally putting his hand into a pair of bevelled gears or cog-wheels, by which the power was transferred to a drill which he was using. This gearing was uncovered, but it was in plain sight. The defendant was not negligent in failing to give particular instructions to the plaintiff. Such instructions to an' experienced machinist would be useless. If the machinery was dangerous by reason of being uncovered, the plaintiff knew this danger as fully as any man could know it. The case clearly falls within the numerous decisions in which it has been held that, if an employee enters into an employment in which there are obvious and known dangei’s, he takes the risk of them, and cannot recover because the machinery might be made less dangerous by being covered. Gilbert v. Guild, 144 Mass. 601, and cases cited. Goodnow v. Walpole Emery Mills, 146 Mass. 261. The plaintiff claims that the defendant is liable under the Pub. Sts. c. 104, § 22. But by the just construction of this chapter a person or corporation cannot be said to be guilty of a •violation of § 13, so as to be liable to a criminal prosecution, or to an action by an employee, until notice has been given to him by an inspector, as required in § 22. Judgment on the verdict.