Mungovan v. O'Keeffe

Braley, J. The position of the barrels of sugar, one upon the other rim to rim, by which the weight of the upper crushed in the head of the lower barrel and then fell upon the plaintiff, did not constitute a defect in the ways, works or machinery of the defendant. The condition was of a temporary character arising from a transitory cause, and the verdict in the defendant’s favor on the second count must stand. Carroll v. Willcutt, [306] 163 Mass. 221. Whittaker v. Bent, 167 Mass. 588. Feeney v. York Manuf. Co. 189 Mass. 336. But under the first count the evidence would have warranted a finding by the jury that Caswell, who was the defendant’s foreman, had been entrusted with superintendence under R. L. c. 106, § 71, cl. 2, now by codification St. 1909, c. 514, § 127, cl. 2. Murphy v. New York, New Haven, & Hartford Railroad, 187 Mass. 18. If the breaking of the barrel head caused the plaintiff’s injuries, as there seems to have been no doubt was the fact, the jury from their common knowledge, as well as from the evidence of the method usually followed by the defendant, could say that, when properly stored, the barrels should have rested upon their sides, and should not have been tiered end for end, one upon the other. The warehouse was used for the general storage of commodities in which the defendant dealt, and as sales were made the plaintiff among other employees took out the merchandise. It could have been found that while doing so the jar from rolling out another barrel of sugar in proximity to it, caused the barrel which fell to topple over. Under these conditions it could not be ruled as matter of law that the foreman, who generally directed the placing of barrels and storage of goods, and who knew of the general course of business, was not called upon in the exercise of reasonable care to anticipate that there might be danger of a collapse when the plaintiff had to remove contiguous merchandise. If by proper oversight he could have guarded against it, his failure to act was evidence for the jury tending to prove that he was negligent. Proulx v. J. W. Bishop Co. 204 Mass. 130. Rooney v. Boston & Maine Railroad, ante, 106. Uor was the plaintiff’s conduct as matter of law careless. It appears that his attention was not called to the position of the barrels until just as the accident occurred. The jury were to determine how far the presumption, that the employer or his representative had discharged the duty of furnishing a reasonably safe place in which to perform the work, should have been relied upon by the plaintiff. Obvious risks only are assumed by contract, but when the defense of assumption of risk by conduct as in the case at bar is invoked, knowledge of the danger by the employee is not alone sufficient to bar recovery. Moylon v. D. S. McDonald Co. 188 Mass. 499, 501, and [307] cases cited. Jellow v. Fore River Ship Building Co. 201 Mass. 464, 467. The exceptions, therefore, must be sustained, but the verdict is set aside only as to the first count, on which there must be a new trial. ¡¡0 ordered.