McTiernan v. American Woolen Co.

Loring, J. The accident here complained of happened in this way. While the plaintiff “ was stooping down mixing dye in a pail,” he “ was pushed ” or given a “ jolt ” by a fellow employee. The “ push ” or. “ jolt ” was so hard a one that he was turned or whirled around two or three times, slipped on the floor, and fell into a vat of boiling water. At the time of the accident the dye was being made in the usual way, and that way was as follows. The dye, which comes in the form of a powder, is first mixed in a pail and then is poured into a vat of boiling water, where it is boiled for fifteen or twenty minutes. The vat had been filled with the boiling water and the plaintiff was mixing the dye powder in a pail which was about a foot away from the vat and between the plaintiff and the vat. The vat in question was “ set upon the floor,” and was one and three quarters feet deep, three and a half feet long, and one and a half feet wide. This vat, together with three others similar to it and another one substantially [240] similar, was installed about three months after the plaintiff entered the defendant’s employment. When the plaintiff entered the defendant’s employment he “ was set to work” carrying bobbins in trucks to the spinning frames. At that time the dye was made by a section hand named Wolfindale, who left about two months before the accident. While Wolfindale was with the defendant it was the duty of the plaintiff to get the dye powder from the dye house and bring it to him. It is stated that the plaintiff used to watch Wolfindale mix the powder, and it must be inferred that he thereby learned how to do that work, for when Wolfindale left and his place was taken by a man named Hayes who did not know how to mix the dye, the plaintiff was told to do that work, and did so for a time, up to the day of the accident. The floor in question was covered by zinc. There was evidence that there was a barrel of soft soap left near the vats, and that the soap was used in washing the floor. The presiding judge directed the jury to find a verdict for the defendant, and the case is here on an exception to that ruling and to a ruling excluding evidence offered by the plaintiff. The plaintiff’s first contention is that the accident was caused by a slippery floor. It might well be doubted whether the evidence would have warranted a finding that the floor was slippery. The plaintiff testified that when he got out of the vat “ he did not notice the floor, but that afterwards, when he came to his senses, he bethought that the floor might be slippery; that it used to be slippery once in a while with the soap; that people would take soap out of the barrel and would let it drop on the floor; that he had seen the zinc both dry and slippery; that when he fell he could not regain his footing. Subject to the defendant’s exceptions, he testified that he thought the floor was wet with water and with soap.” It may be doubted whether this was enough to warrant a finding that the floor was slippery at the time of the accident. If the evidence did warrant a finding that the floor was slippery, the proximate cause of the injury was either the slippery floor or the “jolt” given to the plaintiff by his fellow employee, or the two combined. But for neither of these is the defendant liable. Both came from the negligence of a fellow servant. [241] The plaintiff offered to prove “ that the vats were made by the defendant, that covers were made for them ; that the plaintiff had helped to carry the vats up to the room where they were installed; that he asked the overseer if he should bring the covers up, and that the overseer said no, that they would not use the covers, and the covers were never used while he was at work there.” This was excluded. We are of opinion that the presiding judge was right in excluding it. In the first place, the plaintiff had continued to work for the defendant for nearly eight months after the vats were installed without covers. That puts the case on the same footing that it would have been on had the vats been installed before the plaintiff was employed, and the case at bar comes within Tinkham v. Sawyer, 153 Mass. 485; Murphy v. American Rubber Co. 159 Mass. 266. But apart from that, if the defendant had adopted covers as part of the vats, we cannot assume, in the absence of an offer of evidence to that effect, that they would have been on the vats at the time of the accident. At that time the making of the dye had been begun, the vat had been filled with boiling water to receive the dye, and the dye was being mixed within a foot of the vat, to be poured into the vat and boiled there when the mixing was finished. Exceptions overruled.