McKenna v. Gould Wire Cord Co.

Rugg, J. There is nothing in the circumstances of this action to distinguish it in principle from the many other set screw cases in which defendants have been held not liable for injuries re [411] ceived by an employee. The subject has been so recently and fully discussed, with ample review and citation of authorities, in Mutter v. Lawrence Manuf. Co. 195 Mass. 517, that it is unprofitable now to traverse the ground again. Touching the dim light and necessity of stooping to go under the shaft, it can only be said that these were permanent conditions, obvious to the eye, and with which the plaintiff was or might have been familiar, and which were the same at the beginning of the plaintiff’s employment as at the time of the accident. There was no legal obligation on the part of the employer to change his structure, although it would thereby have been rendered safer. One of the implied terms of the contract of employment was that the work should be performed with the permanent arrangements then existing. Gleason v. Smith, 172 Mass. 50. Lemoine v. Aldrich, 177 Mass. 89. Chisholm v. Donovan, 188 Mass. 378. The Legislature has made ample provision for the remedy of such unwholesome conditions as appear to have existed in the defendant’s factory, but no step seems to have been taken to enforce liability under the statute. R. L. c. 104, §§ 41 and 50 (see now St. 1907, c. 503, § 2, c. 537, § 5). Foley v. Pettee Machine Works, 149 Mass. 294. The plaintiff was injured by the shaft of the blower which was started by the superintendent after he had sent the plaintiff on the errand, on his return from which he was hurt. It may be assumed that the act of starting the blower, upon all the evidence, was an act of superintendence. McPhee v. New England Structural Co. 188 Mass. 141. Although it was customary to announce, by oral or electric signal, the starting of the blower, yet this must have been for some other purpose than that of warning those in the basement that it was about to start, for the conditions were such that the usual warning could not be heard there. Therefore the plaintiff could not have relied upon its being given, and Carroll v. New York, New Haven, & Hartford Railroad, 182 Mass. 237, and cases of that class are not in point. The plaintiff testified that while the blower was in use in cold weather he was in the part of the basement where he went just before the accident “ half a dozen times a day.” The accident happened on December 26, and was therefore at a season of the year when this machine, which was for heating the factory, must [412] have been constantly in use. In view of these circumstances it cannot be said that the superintendent was negligent in starting the blower. He could not reasonably have been expected to foresee that an experienced employee so often in this part of the basement would not guide himself by his usual experience at this season of the year in finding the blower shaft in motion. The evidence as to the statement of the superintendent shortly after the accident was excluded properly. It was a>mere narration of a past event, not tending to contradict anything he had said in testimony, nor was it within the scope of his authority. McDonough v. Boston Elevated Railway, 191 Mass. 509. McNicholas v. New England Tel. & Tel. Co. 196 Mass. 188. Exceptions overruled.