Demers v. Marshall

Morton, J. We do not think that the additional evidence introduced at the last trial requires or would justify a different view from that which was taken when the case was here before. 172 Mass. 548. Notwithstanding it now appears that projecting set screws have been going out of use for the last ten years on account of safer substitutes, and have not been commonly used in establishments constructed during that time, the new evidence [12] falls far short, as a whole, of showing that they are not still commonly used for holding collars and pulleys on to shafts and are not a well recognized device for that purpose. It is expressly stated, indeed, that they have been used in some new establishments, and though it is said that many establishments existing ten years ago have got rid of them and have adopted other devices, it is plain that many establishments still continue to use them. The defendant was not bound to change the set screw or to point it out to the plaintiff. The uncontradicted testimony was that it could be seen from the floor and the danger from the revolving shaft was apparent. The risk was an obvious one which the plaintiff must be held to have assumed. Hale v. Cheney, 159 Mass. 268. Rooney v. Sewall & Day Cordage Co. 161 Mass. 153, cited in Wilson v. Massachusetts Cotton Mills, 169 Mass. 67, 71, and Donahue v. Washburn & Moen Manuf. Co. 169 Mass. 574, 575. Ford v. Mt. Tom Sulphite Pulp Co. 172 Mass. 544. Moreover, instead of putting up his ladder on the side on which he had been instructed to put it up, the plaintiff, without any direction from any one, put it up on the opposite side, and, without any examination, attempted to do the oiling by reaching over the revolving shaft in close proximity to it. This was a dangerous thing to do, especially if, as he testified, “ it was quite dark,” and showed a want of due care. There wds nothing to prevent him from moving the castings or at least from speaking to the foreman about doing so. The testimony of John Marshall would not have warranted a finding, if that was material, that the mill had been constructed within ten years or that the piece of shafting was new. Judgment on the verdict.