Donovan v. Chase Shawmut Co.

Braley, J. This is an action of tort at common law to recover for loss of services of the plaintiff’s minor son, James [359] L. Donovan. The declaration as finally amended contained two counts, one charging the defendant with furnishing for the son’s use a defective press by which he was injured, and the other for setting him at work upon it without any previous warning or instructions as to its unsound condition. The negligence alleged under the second count is not in exposing an employee to the risk of injury from the inherent danger arising from the use of unguarded or rapidly moving machinery which is in proper repair, but in exposing him to the chance of injury from defective machinery, of which he is ignorant, without warning him of the danger. See Boyd v. Taylor, 195 Mass. 272, 275, and cases cited. By the form of their verdict the jury found for the plaintiff on both counts, and the defendant contends there was no evidence of its negligence, or of the due care of its servant. It appears from the evidence introduced by the plaintiff, and which the defendant made no attempt to control, that at the time of the accident the plaintiff’s son was operating the press cutting copper wire, which unwound from a reel and then passed through a slot in the machine under a knife worked by a treadle controlled by the operator. In operation, if the press is in running order, the knife should not descend until the treadle is pressed down, when upon being released, as the required length of wire is reached, it cuts the wire. It was uncontroverted that after the knife had ascended, and while the plaintiff’s son was attempting to draw the wire into position for the next strip, with his foot removed from the treadle, the press repeated and the knife came down, causing the injuries to his hand which were the occasion of the consequential damages suffered by the plaintiff. If the unexplained fall of the knife when the treadle was at rest was some evidence of the defendant’s negligence within the doctrine of Byrne v. Boston Woven Hose & Rubber Co. 191 Mass. 40, 42, Ryan v. Fall River Iron Works Co. 200 Mass. 188, and Silverman v. Carr, 200 Mass. 396, the plaintiff went further and offered the testimony of a former employee of the defendant, who was familiar with the operation of the press, that it was defective before and at the time of the accident. It appears from his testimony, which was relevant and properly was admitted, that not only for some two months before the accident [360] had there been a repetition of the knife several times, to which the attention of the defendant’s foreman had been called, but the press still remained in the same condition when the plaintiff's son was injured. Droney v. Doherty, 186 Mass. 205, 207. The jury would be warranted in finding therefrom that the press was out of repair and that the defendant either knew or in the exercise of reasonable diligence should have known that it had become dangerous and unsafe, and the case at bar therefore falls within the case of Mulvaney v. Peck, 196 Mass. 95. If they found this, then, if the defendant set the plaintiff’s son at work without giving him any warning or instructions as to the dangerous or unsafe character of the press and he was injured, the defendant would be responsible unless the plaintiff’s son knew of the defect and appreciated the danger. Donahue v. Buck, 197 Mass. 550, 552. The defendant urges that upon the son’s evidence the risk of injury was assumed and no instructions were necessary. The automatic starting of a machine when at rest is not ordinarily an obvious risk which the employee assumes by his contract of service. Murphy v. Marston Coal Co. 183 Mass. 385. And there is no evidence that he knew that the knife would fall without working the treadle until within a few hours before he was injured. The accident happened within a week after he had entered the defendant’s employment and within less than a day after he had been set at work cutting wire. He was sixteen years of age, and came directly from school to the defendant’s works, where at first he was employed in labor which did not require the use of machinery. When transferred to cutting wire, instructions were given as to the method of operation, which was comparatively simple and easily understood, but he received no information from any one as to the defective character of the press. It appears, however, from his testimony that, while he was using the press the night before and the following morning, the knife came down several times when his foot was off the treadle. But, in view of his inexperience coupled with his statement that he believed these repetitions were incident to the proper operation of the press and that while at his work he followed the instructions received, it cannot be said as matter of law that he appreciated the danger and assumed the risk of in [361] jury by continuing at his employment, or that he was guilty of contributory negligence. Mahoney v. Dore, 155 Mass. 513, 519. Garant v. Cashman, 183 Mass. 13, 18. Bowden v. Marlborough Electric Machine & Lamp Co. 185 Mass. 549. Wagner v. Boston Elevated Railway, 188 Mass. 437,440, 441. Byrne v. Learnard, 191 Mass. 269. Urquhart v. Smith & Anthony Co. 192 Mass. 257, 263. Sodde v. Attleboro Manuf. Co. 193 Mass. 237. McGuinness v. Lehan, 193 Mass. 241. Lynch v. Lynn Box Co. 194 Mass. 307. Reardon v. Byrne, 195 Mass. 146. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11. It also is contended that, because the wire did not unwind freely owing to a faulty adjustment of the reel to the press, thereby causing his hand to slip as he pulled the wire along to get it into place, the plaintiff cannot recover. But, even if the reel was not properly adjusted through the act of a fellow servant, the jury could find under appropriate instructions, which the exceptions state were given, that the direct and proximate cause of the injury was attributable to the defective machine, for if the knife had not fallen he apparently would have escaped unharmed. Oulighan v. Butler, 189 Mass. 287, 292, 293. Doe v. Boston & Worcester Street Railway, 195 Mass. 168, 172. The exceptions of the defendant to the admission of evidence, and to the refusals to rule as requested, accordingly must be overruled. So ordered.