Simoneau v. Rice & Hutchins

Hammond, J. While the plaintiff, a young man then nineteen years of age, was moving some shoe racks upon a floor in the factory of the defendant, the heel of one of his shoes was torn off. Apparently for the purpose of examining the shoe, he seems to have left the racks, walked about three feet toward an elevator well, and upon reaching it raised his foot, at the same time placing his right hand for support upon the bar which was across the entrance to the elevator; the bar slipped lengthwise out of its support, and he fell into the well and was injured. In this large room, one hundred feet in length, the place he selected against which to lean was the only one where there could have been any danger; and even here there would have been no danger had not his hand so touched the bar as to shove it lengthwise. Whether the plaintiff was in the exercise of due care is a question of considerable difficulty, but we have not had occasion to pass upon it, for, even if that question should be decided in his favor, there is still a fatal defect in his case. The bar which [84] was placed across the entrance to the elevator and which the plaintiff displaced by his hand was made of wood and appears to have been about six feet long, four inches wide and one inch thick. It rested at each end upon “ an iron cleat or half square.” It could be moved lengthwise through the cleats. It was a very simple contrivance and could be easily understood by any boy of average intelligence. It was the contrivance in use at the time the plaintiff entered the employ of the defendant and continued constantly in use up to the time of the accident. The defendant owed to the plaintiff no duty to change the condition of its factory for his accommodation. In entering the defendant’s employ he assumed the obvious risks incident to the business. And this means not necessarily the risks which he actually knew about but also what by proper care he might know. As stated by Morton, J., in Kenney v. Hingham Cordage Co. 168 Mass. 278, 282: “ The question in each case is not whether the employee has actually observed and by a conscious act of the will assumed all of the risks involved, but whether the risks are incident to and naturally grow out of the employment in which he is engaged, and are such as, taking his age, intelligence and experience into account, he must be held to have appreciated if he saw, and such as, if he did not see, he could have seen and understood if he had looked. If the risks are of this character, then they are said to be obvious, and the employee assumes them.” Under the circumstances of the present case the plaintiff must be held to have assumed the risk of the displacement of this rail in the manner described. Nor upon this branch of the case would it be material that this condition of things is not such as is required by R. L. c. 104, § 43. No error was made in the exclusion of the evidence as to the prior condition of the opening into the elevator before the plaintiff entered the employ of the defendant. Judgment for the defendant.