Belding v. Lesure

Sheldon, J. The only contentions made by the defendants are that there was no evidence of negligence on the part of Arthur P. Lesure, and especially that it could not be found that the starting of the machine was due to any such negligence; and that the plaintiff was not in the exercise of due care. But while the evidence was meagre, we are of opinion that both of these questions were for the jury. The plaintiff was pointing out to Lesure what she regarded as defects in this machine, in order that he might have them remedied. It was manifest that if the machine should be started while she was so engaged, there would be great danger of her hands being drawn between the rollers and lacerated. The jury might find on the evidence before them that the machine was started by Lesure’s allowing some portion of his body or of his clothing to hit against the shipper, whereby the belt was shifted from the loose to the tight pulley, so as to set the rollers in motion. Indeed, if the plaintiff did not start the machine herself, which she denied, it is difficult to see what other cause there could have been of its starting than some unguarded motion of Lesure. It does not need argument to show that the jury had a right to say that this was carelessness of one of the defendants for which they would both be responsible alike at common law and under the provisions of R. L. c. 106, § 71. Linton v. Hurley, 14 Gray, 191. Gurney v. Le Baron, 182 Mass. 368. Greenstein v. Chick, 187 Mass. 157. Dunphy v. Boston Elevated Railway, 192 Mass. 415. The plaintiff was engaged in the line of her duty in calling her employer’s attention to alleged defects in this machine. She did not while so engaged assume the risk of his negligence or of that of any one exercising superintendence as he was then doing. Meagher v. Crawford Laundry Machine Co. 187 Mass. 586. The jury could find that she was justified in putting her hands near to and upon the rolls in order to point out what needed to be done to them and their coverings. She was not bound to anticipate that he would negligently start the machine while he knew that she was doing this. It was for the jury to say whether or not she was in the exercise of due care. [489] Foster v. New York, New Haven, & Hartford Railroad, 187 Mass. 21. Mooney v. Connecticut River Lumber Co. 154 Mass. 407, 409. ¡Exceptions overruled.