Morley v. Union Cotton Manufacturing Co.

Braley, J. The jury from the testimony of the defendant’s “ second hand,” who hired the plaintiff, could have found, that the hole or depression which had been in existence four years before the accident, by reason of its length, width, and depth, with a ragged edge, caused the floor to be defective and dangerous, either at common law or under the statute, and that the defendant by the exercise of due diligence should have known of and remedied the defect. Huddleston v. Lowell Machine Shop, 106 Mass. 282. Foster v. New York, New Haven, & Hartford Railroad, 187 Mass. 21. Thompson v. American Writing Paper Co. 187 Mass. 93. It is said by the defendant that the plaintiff assumed the risk of injury from these conditions. But, while she accepted obvious dangers incident to her employment, the jury upon conflicting evidence would have been warranted in finding that the accompanying circumstances as to location, light and accumulation of waste material in the hole were sufficient to prevent its discovery without careful inspection. If they so determined, the defect was either wholly or partially concealed, and the plaintiff did not undertake to relieve the defendant from liability. Crimmins v. Booth, 202 Mass. 17, 22. The case at bar is distinguishable from Gleason v. Smith, 172 Mass. 50, and kindred cases where from actual observation or from common experience and knowledge the construction of a machine, or the projections of parts of the mechanical equipment, or a floor with uncovered openings or uneven surface, having been plainly visible, the employee was held to have assumed the risks of the business as conducted by the defendant. Goodridge v. Washington Mills Co. 160 Mass. 234. Nealand v. Lynn & Boston Railroad, 173 Mass. 42. McCafferty v. Lewando's French Dyeing & Cleansing Co. 194 Mass. 412. Connolly v. Furbush, 201 Mass. 271. The plaintiff in her testimony stated, that she never had observed or been informed of the depression, and that when injured she was necessarily passing over it in the usual performance of her work. The obligation of the defendant to provide a reason [291] ably safe place or ways and works where this duty of service could be discharged afforded a presumption on which the plaintiff could rely, that there were no unseen dangers which might lead to bodily harm. If she still was required to take ordinary precautions, and could not disregard exposed conditions clearly perceptible, yet in view of her further evidence, that the place was not well lighted, the effect to be given to her previous opportunities for observation, while important, was for the consideration of the jury, to whom the question of the plaintiff’s due care as well as of the defendant’s negligence should have been submitted. Peterson v. Morgan Spring Co. 189 Mass. 576. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. Exceptions sustained.