Sanders v. New York Central & Hudson River Railroad

Morton, J. This is an action of tort to recover for personal injuries received while in the defendant’s employ. The declaration was in four counts. With the consent of the plaintiff the presiding judge directed a verdict for the defendant on the second and fourth counts. Subject to the plaintiff’s exceptions he directed a verdict for the defendant on the third count. The case went to the jury on the first count which alleged negligence on the part of the superintendent. There was a verdict for the plaintiff. The case is here on exceptions by both parties. We take up first the defendant’s exceptions. They are that the plaintiff was not entitled to recover, that he was not in the exercise of due care and assumed the risk, and that there was no evidence of negligence on the part of the defendant. We think that these were all questions of fact for the jury. At the time of the accident the plaintiff was forty-eight years old and was an experienced machinist. But, as he told Wieberg, the superintendent, he did, not know anything about the job on which he had been put to work by Wieberg, and on which he was working when he was injured. In procuring the stick and putting it into the boiler front he did as directed by Wieberg, and in assisting to hoist up the boiler front and put in on the boring machine he acted under Wieberg’s directions. Although he thought, as he told Wieberg, that it was “quite a dangerous place,” he had a right to rely on Wieberg’s assurance that, as testified to by the plaintiff, “ It is all right. We done hundreds of those kind of work on this machine.” In view of his inexperience in regard to the particular kind of work that he was doing and of the fact that he was acting under Wieberg’s directions, the question of his due care and assumption of the risk was for the jury. Griffin v. Joseph Ross Corp. 204 Mass. 477. Di Bari v. J. W. Bishop Co. 199 Mass. 254. Reardon v. Byrne, 195 Mass. 146. It was for the jury to say whether the method in which Wieberg undertook to raise the boiler head was or was not a proper way. It could not be ruled as matter of law that there was no evidence of negligence on the part of the defend [271] ant, or that the plaintiff could not recover. The case was rightly submitted to the jury on the first count. We pass to the plaintiff’s exception to the ruling of the presiding judge directing a verdict for the defendant on the third count. This count alleged that the plaintiff was set to work in an unsafe place with unsuitable and unsafe appliances, and without due warning or instructions. There was no evidence of any defect in the place where the plaintiff was set to work or in the apparatus that was furnished. The plaintiff took the appliances and apparatus as he found them when he entered the defendant’s employment, except as to defects which could not be discovered by the exercise of ordinary care and diligence, and no duty rested on the defendant to furnish better ones. Miszoian v. Taft, 206 Mass. 227. McDonnell v. New York, New Haven, & Hartford Railroad, 192 Mass. 538. There is nothing to show that the machinery or appliances were not suitable for the use for which they were designed. The negligence consisted, as already pointed out, in the improper manner in which the superintendent undertook to raise the boiler head. It follows that there was no error in directing a verdict for the defendant on the third count. Defendant’s exceptions overruled; plaintiff’s exceptions overruled.