Quigley v. Thomas G. Plant Co.

Field, C. J. This is an action of tort for personal injuries. The plaintiff at the time of receiving his injuries was between twenty-five and twenty-six years of age, and for about two years before he went to work for the defendant had worked upon a machine known as the Bresnahan dieing-out (or dinking) machine, which was a machine in common use in the shoe factories in Lynn, and was similar to the machine on which he was injured, except that this machine had a tin guard placed over a part of the counter shaft. The plaintiff was a workman whose business it was to cut out soles upon the machine by placing his foot upon and pressing down a treadle, and thus causing the head block of the machine to come down upon a die and cut the soles in shape. He was known as the head dinker in the factory. The defendant is a corporation, and for a long time before the accident had been engaged in the manufacture of shoes in Lynn: The plaintiff entered into the employ of the defendant in July, 1891, and at that time this guard was on the machine, having been placed there by the defendant. The plaintiff continued in the employ of the defendant until he was injured. The plaintiff was injured on March 30,1894, by a piece of leather falling from the die into the space between the collar on the counter shaft and the hub of the loose pulley, which prevented the loose and the fixed pulleys from separating from each other when his foot was removed from the treadle, and caused the head block to repeat and come down on his hands, which were on the die engaged in removing a sole and the scraps of leather cut from it. The contention of the plaintiff is, that the placing of the guard upon the machine increased [372] the risk of operating the machine; that it was not an obvious risk; that by reason of the guard being placed on it the machine was defective, because the guard furnished a place on which scraps of leather would rest, instead of falling on the floor or being thrown off by the revolutions of the counter shaft and the pulley; and that if such a guard had been properly placed upon the machine, or if no guard had been placed upon it, the accident would not have happened. There was a window behind the machine through which there was a good light, and the plaintiff had frequently oiled and cleaned the machine, and the guard was in plain sight. None of the witnesses had ever known a similar accident to occur on a machine without such a guard, and so far as appears no such accident had ever before occurred on the machine used by the plaintiff. The defendant contended that the guard was a protection against pieces of leather falling into the operative parts of the machine; that it' was properly put on; that the danger attending the use of the machine, including all danger, if any, connected with the guard, was obvious, and that the plaintiff took the risk of such an accident as happened; and he, among other things, asked the court to rule that there was not sufficient evidence to warrant the jury,in returning a verdict for the plaintiff. The court refused so to rule, and submitted the case to the jury under instructions not excepted to, and the jury found for the plaintiff. It is plain that the guard was put upon the machine by the defendant for the purpose of preventing the scraps of leather from falling into the parts of the machine which transmitted the power to the bead block. The parts of the machine exposed to the falling of scraps of leather upon them from the die were not out of repair or defective in any manner, and the machine as a whole was not defective. It is the construction of the machine with the guard on which is complained of. The chances of any scrap of leather falling and clogging the proper operation of the machine must have been as well known to the plaintiff, who had had nearly three years’ experience in operating the machine, as they could be to any one. The defendant had endeavored to make this machine somewhat more safe than those ordinarily [373] used by putting on the guard; but whether the guard had this effect or not, it would be very difficult for any one certainly to determine. However this may be, we think that the plaintiff must be held to have assumed the risk of operating the machine with the guard on, as it was well known to him that the guard was permanently attached to the machine. The case falls within .the principles declared in Toomey v. Donovan, 158 Mass. 232; Groldthwait v. Haverhill & Groveland Street Railway, 160 Mass. 554; Rooney v. Sewall & Day Cordage Go. 161 Mass. 153; Cassady v. Boston & Albany Railroad, 164 Mass. 168. We are of opinion that the ruling requested should have been given. Exceptions sustained.