Iveson v. Perry

Braley, J. The declaration is under R. L. c. 106, § 71, but as there was no evidence that the plaintiff’s injury was caused by the negligence of any person intrusted by the defendants with superintendence, the plaintiff’s case rests on the first count for defective ways, works or machinery. The operation of the switch at the time of the accident was entirely within the plaintiff’s control, and finding it set for the side track he changed it for the main track. In some way not shown by the evidence, unless caused perhaps by insufficient oiling or the failure of the plaintiff properly to manipulate the spring, after having been set by him, as he asserted, in the usual manner, the switch partially opened, causing the car which he was hauling to be derailed. It is assumed by the plaintiff that from this action of the switch the jury could find that it constituted a defect in the permanent ways of the defendant. But it is not necessary to decide this question. See Mulvaney v. Peck, 196 Mass. 95. The evidence was uncontroverted, that the mechanism of this switch not only was simple and easily understood but also was plainly visible, and its general construction either was known to the plaintiff, or could have been ascertained by him readily upon casual observation while he was using the appliance during the time of his employment. The switch having been, moreover, in the same condition at the time of the accident as it was when he entered the defendants’ service, he assumed the risk which might be connected with its use as a part of the mechanical equipment of the defendants’ factory. Rooney v. Sewall & Day Cordage Co. 161 Mass. 153. McCafferty v. Lewando's French Dyeing & Cleansing Co. 194 Mass. 412. The verdict in the defendants’ favor was ordered rightly. Exceptions overruled.