Carey v. Boston & Maine Railroad

Lathrop, J. In the opinion of a majority of the court, the instructions requested by the defendant should have been given. The plaintiff had been in the employ of the defendant for several years as a section hand. The hand-car on which he was injured had been in use for several days. While there is evidence that some other hand-cars had the end of the bolt welded,' and others had the nut at the end of the handle, there is no evidence that a handle made as this one was, with a threaded screw projecting beyond the end of the nut, was not a well known device. The fact that it was more dangerous than other devices does not render the employer liable. In Goodnow v. Walpole Emery Mills, 146 Mass. 261, the plaintiff was injured by a set screw projecting from the collar of a shaft. On the question whether this was a defect for which the defendant was liable, it was said by Mr. Justice Devens, in delivering the opinion of the court: “It cannot be claimed that the machinery used by the defendant was out of repair, or defective and unsuitable for the purpose. There was evidence on the part of the plaintiff that a recessed collar was in common use, so made that the set screw was sunk into the collar flush with its face, upon which there was much less liability of being caught than on that used by the defendant. But the plaintiff offered no evidence that the collar and set screw as used by the defendant were not also in common use.” See also Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79; Coombs v. Fitchburg Railroad, 156 Mass. 200. The danger of bringing one’s clothes in contact with a revolving crank while in motion is an obvious one; and it cannot be said that, because this danger was somewhat increased by the device used, there was a defect in the machine. Whatever danger there was in the fact that the screw projected beyond the nut was as well known and as obvious a danger to the plaintiff as to the defendant. The plaintiff does not testify that he was ignorant of the fact; and he had ample opportunity of knowing all about it. He must, therefore, be held to have assumed and [232] taken the risk of injury from that source. Pingree v. Leyland, 135 Mass. 398. Williams v. Churchill, 137 Mass. 243. Moulton v. Gage, 138 Mass. 390. Leary v. Boston & Albany Railroad, 139 Mass. 580. Russell v. Tillotson, 140 Mass. 201. Taylor v. Carew Manuf. Co. 140 Mass. 150. Gilbert v. Guild, 144 Mass. 601. Wood v. Locke, 147 Mass. 604. Probert v. Phipps, 149 Mass. 258. Lothrop v. Fitchburg Railroad, 150 Mass. 423. Pratt v. Prouty, 153 Mass. 333. There was also a variance between the allegations and the proof. The declaration alleges that the pin or bolt became detached from the handle, and then became entangled in the plaintiff’s clothing, and that it became detached because it and other parts and attachments of the handle were insufficient and unfit for the use to which they had been applied. The only defect alleged in the declaration is a condition which caused the pin or bolt to become detached. This was not supported by the proof. Exceptions sustained.