Bagley v. Wonderland Co.

Rugg, J. This is an action of tort to recover damages for personal injury. The plaintiff was a foreman plumber and piper in the employ of the defendants Aldrich and Shea, who were performing certain work under contract for or upon the estate of the other defendant, which owned and operated an amusement park. The injuries were sustained in a small building called the pump house, which contained a pump, by which water was forced to the top of a chute in the park down which it flowed, and contained also unguarded cog wheels and other machinery connected with the pump. The supply of water was through pipes regulated by valves just outside, and turned from, a window in the pump house, all of which had been built and installed after the plaintiff entered the employment and which had been in use about a fortnight before the accident. In order to reach that window it was necessary to walk partly around the pump and in a passageway about eighteen inches wide be: tween the side of the building and the cog wheels. There was evidence which, given its full probatory force, would warrant the jury in finding that between daylight and dark of a cloudy June night the plaintiff was directed both by the defendant Aldrich and by an agent of the Wonderland Company to go to the pump house and try the valves and see what the trouble was with them, as the water was not flowing down the chute as it should; that he had not been to the place for fifteen days, and had never before seen the pump in operation, nor had anything [243] to do with opening or closing the valves; that on the evening in question inside the pump house “ it was dark ” and that the light was not such that he could see the appearance of the floor; that he did not know that there was oil on any part of the floor; that while walking toward the window to regulate the valves the plaintiff slipped by reason of oil on the floor, and his arm was caught on the revolving cog wheels and was mangled; that a glass oil cup holding about a gill on the crank shaft of the pump was cracked from top to bottom and had a piece nicked out of it about a week before the accident, and that from this cup oil ran upon the floor in such quantities as to be tracked about; that oil would last in this cup about ten minutes, and in the other oil cups on the machinery an hour and a half or more; that oil was constantly required in that cup when the machinery was in motion; that notice of this condition was given to the Wonderland Company and to Aldrich and Shea, the other defendants, but that the cup was not changed before the accident; that within a few minutes after the accident there was oil upon the floor, the width of the passageway, for a length of four or five feet; that it “ was pretty well covered with oil ” and there were marks as if a man had slipped, and that oil was dripping on the floor from the cracked cup, near the passageway; that no oil came upon the floor from any other source; that the pump had been operated for several days before the accident by employees of the Wonderland Company. Although there was other evidence which would have amply supported other views of the facts, especially as to the degree of light in the pump house, we must, after a" verdict for the plaintiff, discuss the exceptions on the footing of inferences most favorable to the plaintiff. 1. There was sufficient evidence to support a finding that the plaintiff was in the exercise of due care. He was going into a building with whose general construction and arrangement of machinery he was familiar. Even though it may have been somewhat dark, the conditions as he had known them might reasonably have been assumed to remain permanent, in view of the uses of the building, and although the floor perhaps could not have been expected to be wholly free from oil, he was not as matter of law bound to anticipate and guard against [244] such slipperiness as would result from the quantities of oil escaping from a broken cup. The situation is quite different from that of a man entering in the dark a strange place. Whether in the dusk he could have seen the coridition of the floor cPr should have procured more light before proceeding were under the circumstances properly left to the jury. Hamilton v. Taylor, 195 Mass. 68. It is to be remembered that he had come from the greater light of out of doors, and that his objective point was the valves, which were also outside the building and to be reached through a window. 2. It cannot be said as matter of law that the plaintiff assumed the risk of injury resulting from the oily floor. The doctrine of contractual assumption of risk does not apply, for the reason that the condition, both of the broken oil cup and the lubricated floor, had come into existence since his contract of employment. He did not in fact know of the danger which caused his injury. The workman can be barred of recovery for injuries resulting from perils arising during the course of employment only when he realizes their nature and extent with full comprehension of the danger, and continues in the service with the added exposure voluntarily and intelligently. O’Toole v. Pruyn, 201 Mass. 126. 3. Hegligence of the Wonderland Company may well have been predicated upon its use for several days of a cracked and leaky oil cup under such circumstances that a large part of its contents continually flowed upon the floor of a passageway, where it was necessary or might become necessary for others than those in charge of the machinery to pass. Although the defendants Aldrich and Shea did not own the building or operate the machinery, yet it might have .been found to have been a part of their work to regulate the flow of water down the chutes and to test the valves. In order to do this, it was necessary to go to the place where the plaintiff was injured. There was evidence tending to show that each of them knew of the leaking oil cup several days before the accident, and one of them had promised to remedy it. These circumstances may have been found to be enough to charge them with negligence in setting the plaintiff at work in a dangerous place of which he was ignorant without any warning. If they had no right to change the oil cup, they had knowledge of a danger and the duty to warn [245] rested on them. Haggblom v. Winslow Brothers & Smith Co. 198 Mass. 114. La Fortune v. Jolly, 167 Mass. 170. Morena v. Winston, 194 Mass. 378. Crimmins v. Booth, 202 Mass. 17. Shannon v. Willard, 201 Mass. 377, upon which the defendants rely, is distinguishable in that the slipperiness was there plainly obvious. 4. The principle that the cause of the injury is left a conjecture, as in Childs v. American Express Co. 197 Mass. 337, is invoked in behalf of all the defendants, because there is faint evidence that mud was tracked into the pump room from outside. But testimony to this effect was slight in itself, and most of the witnesses who described the surface of the floor where the plaintiff fell made no mention of anything aside from the oil. The decided weight of evidence pointed to that as the cause of his injury. 5. It is urged that there was no evidence of a copartnership between the defendants Aldrich and Shea. It was not questioned that a person or persons doing business as the Aldrich and Shea Construction Company had a contract for doing the work, upon which the plaintiff was engaged. Both Aldrich and Shea were upon the premises every day, and the former had referred to the latter as his partner. This statement standing alone was evidence only against the one who made it. Rosseau v. Deschenes, 203 Mass. 261. Shea hired men, gave directions indicative of a master’s power, and when notified of the defective oil cup “ said he would have it seen to.” Several witnesses in testifying referred without objection to “ Aldrich & Shea ” as a firm. Though this may not have been competent evidence, yet, being in, it was entitled to its probative force. Hubbard v. Allyn, 200 Mass. 166, 171. A printed letter head used by Aldrich bore the names of both Shea and Aldrich. These circumstances taken together were sufficient to support a finding of a copartnership. Smith v. Paul Boyton Co. 176 Mass. 217. Norris v. Anthony, 193 Mass. 225. Rosseau v. Deschenes, 203 Mass. 261. Case v. Baldwin, 136 Mass. 90. McMurtrie v. Guiler, 183 Mass. 451. Gay v. Ray, 189 Mass. 112. Ashley v. Dowling, 203 Mass. 311. Sumner v. Gardiner, 184 Mass. 433. 6. It is contended that the defendants cannot be held jointly liable. Wrongdoers acting independently, whose tortious con [246] duct concurrently contributes to the injury of a person, may be held jointly liable. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 581. Lindenhaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, 318. Exceptions to evidence have not been argued, and are treated as waived. Hxeeptions overruled.