Hines v. Waltham Manufacturing Co.

Braley, J. The plaintiff while at work on an ordinary engine lathe reaming the inside of a casting which was to be made into an automobile cylinder, lost the sight of an eye by a flying chip from the edge of the boring tool or reamer. If not conceded by the defendant, there was abundant evidence that the edge splintered, because the tool, having been adjusted for the thickness of the scarf to be planed off, suddenly “ dug in ” to the cylinder owing to the nut on the automatic cross feed screw, which controlled the movements of the tool, having become so worn as to produce an irregular instead of a uniform action. It also appeared that this condition, described by the witnesses as “lost motion,” was known to the defendant’s foreman of the “ lathe room,” who must be considered as the defendant’s representative. Ruddy v. George F. Blake Manuf. Co. 205 Mass. 172, 181. But if there was proof of its negligence in furnishing a defective lathe, the defendant contends that the plaintiff, who knew that the machine had not been running properly, assumed the risk, or did not use ordinary prudence to ascertain if there was any lost motion before going on with the work. Ho doubt, as the mechanical experts all agreed, if the plaintiff, who was a skilful machinist and knew of the method, had shaken the cross feed apparatus, the defect although not visually apparent would have been discovered. Yet it is obvious from his evidence that this was not the situation in which he was placed at the time of the accident. Having noticed the irregularity a week before, he then called the attention of the foreman to the lathe, who directed him to perform other work, and in response to the plaintiff’s offer to make the necessary repairs replied, “ I will have another man fix this immediately for you.” If the jury believed the plaintiff, there was not only a promise to re [284] pair, but a change in the plaintiffs employment while the repairs were being made. But the evidence does not end here. The superintendent on the day of the accident ordered him to resume his former work, and to use the lathe. It is settled by our decisions, that under such circumstances the plaintiff was warranted in assuming that the defect had been remedied, and the question whether by his conduct he assumed the risk, or failed to exercise ordinary care, was for the jury. Jellow v. Fore River Ship Building Co. 201 Mass. 464, 467, 468. Griffin v. Joseph Ross Corp. 204 Mass. 477, 481. A verdict having been returned only on the count at common law, the first and second requests therefore were rightly refused. Nor can the remaining exception be sustained. If we assume that the answer of the defendant’s witness who was called as a mechanical expert would have supported its contention, that the breaking of the boring tool was not attributable to the lost niotion, it was for the presiding judge to decide as to his qualifications, and no abuse of this discretionary power having been shown, his adverse decision is not a ground of exception. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533. Exceptions overruled,