Winston v. Converse Rubber Shoe Co.

Crosby, J. This is an action to recover for personal injuries received by the plaintiff while in the defendant’s employ. He elected to rely on the fourth count of his declaration, which sets forth a cause of action at common law. The accident occurred while the plaintiff and three other employees of the defendant were moving a hot water heater over a concrete floor in the defendant’s factory on August 6, 1911. As the plaintiff was injured before the workmen’s compensation act (St. 1911, c. 751) went into effect, its provisions are not applicable. The heater, which was cylindrical in shape, was set oh three iron legs, twelve or fifteen inches high, which were attached to the heater by grooves or sockets on the under side, similar to the manner legs ordinarily are attached to a kitchen stove; it was about two feet in diameter and five feet in height, and weighed about nine hundred pounds. The plaintiff and another workman were [451] in front of the heater lifting and pulling it along, and two other workmen on the opposite side lifted and pushed it. While so engaged, one of the legs came out and the heater fell on the plaintiff causing the injuries complained of. A witness of experience in handling heaters, called by the plaintiff, testified as an expert, subject to the defendant’s exception, that the method adopted in moving the heater was improper, that a proper method would have been to remove the legs first, and by means of rollers and skids to slide or roll it along the floor. We cannot say that the proper way to do the work was so familiar to men of ordinary intelligence and understanding that expert testimony would not be instructive. The evidence was competent and the exception taken to its admission must be overruled. The plaintiff was a laborer, who came from Ireland to this country in April, 1911, and went to work for the defendant the following May. He had been employed round the yard for about a week before the accident. It appeared that he never had any experience in moving heaters or stoves, and that in his home in his native country there were no stoves, but that fireplaces were used. Before the accident he had never seen the legs of a heater and did not know how they were fastened; he testified that they "appeared to be all one casting.” A stationary fireman in the defendant’s employ also testified that it appeared to him as if the legs of the heater were all one casting and that he did not discover that the legs were attached by grooves or sockets until after the accident. Upon this evidence it could not properly have been ruled that the danger connected with the work was so obvious that the plaintiff assumed the risk of injury. He was an ordinary laborer without ' experience in the work of moving heaters, and if he did not know the manner in which the legs were attached it could have been found that he had no reason to anticipate they would become unfastened. Whether he was in the exercise of due care and whether he assumed the risk, wére questions of fact for the jury. Whether the defendant was negligent in the method adopted in doing the work and in failing to warn the plaintiff of the serious consequences that might follow if the legs were suddenly pulled away from the heater, was also a question of fact for the jury. The work in which the plaintiff was engaged was different from that of moving an ordinary stove; and the case is not like those [452] where the danger is so obvious that no warning is required, as in Healy v. Gilchrist Co. 205 Mass. 393, and MacLellan v. Boston Elevated Railway, 221 Mass. 20. The case of Cunningham v. Atlas Tack Co. 187 Mass. 51, is not an authority in favor of the defendant’s contention. It could not be ruled as matter of law that there was no negligence on the part of the defendant, or that the plaintiff could not recover. Gettins v. Kelley, 212 Mass. 171. Sanders v. New York Central & Hudson River Railroad, 212 Mass. 269. Generous v. Hosmer, 216 Mass. 26. Maddox v. Ballard, 218 Mass. 55. Bernabeo v. Kaulback, 226 Mass. 128. Exceptions overruled.