Sheridan v. Boston & Albany Railroad

Sanderson, J. In this action the plaintiff seeks to recover damages for an injury sustained October 27, 1921, while at work for the defendant. He was first employed by it in the latter part of 1915. From December 28,1917, [449] to March 1,1920, the railroad was subject to Federal control, during which time except for a brief period of absence he was an employee of the Federal government. He again became an employee of the defendant on the latter date and the trial judge rightly ruled that his contract of employment began when the defendant resumed operation of the railroad. Missouri Pacific Railroad v. Ault, 256 U. S. 554, 557. It was a part of the plaintiff’s duty during the entire course of his employment to remove, sharpen, and replace blades set in counterbores, used to enlarge holes in metal. These blades are of highly tempered steel, fastened in the end of the counterbore by means of shims or wedges. The plaintiff testified that on the day of the accident, while he was driving a blade into its shank with a hard steel hammer, a chip flew from the blade into his finger, causing the injury which is the basis of this action; that because the blade was being fastened in place by means of shims, it was necessary to strike the blade itself with the hammer; that during the entire period since March 1, 1920, the defendant furnished hard hammers only; that there had been a time previous to or during a part of the period of Federal control when soft or Babbitt hammers were used which had either worn out or disappeared and had not been replaced; that before the defendant resumed control, he had asked the foreman at least three times for such hammers; that the defendant had never supplied tapering wedges to fasten the blades, but that shims were used for this purpose which the employee obtained wherever he could pick them up, though generally he used those that came with the tool when it was sent to be sharpened; that during the six years of his employment no blade had chipped, to his knowledge. There was testimony tending to prove that it was safer to use tapering wedges instead of shims to fasten these blades; that when wedges were used the hammer blows would fall largely, if not altogether, on the wedge, while the use of shims made it necessary to strike the blade itself; that a hard hammer is not a safe instrument to use in striking the blade because of the danger of chipping the steel which the use of a soft hammer would obviate. One of the specifications of negligence was that the blade [450] was improperly hardened and thus made brittle. The evidence does not justify a finding of negligence on this ground. All blades were required to be made of hardened steel. This one had become dull from use and upon the evidence the mere fact of chipping did not prove that it was defective. Moreover it did not appear that the defendant manufactured it, or could have discovered by reasonable inspection the degree to which it was hardened. Harnois v. Cutting, 174 Mass. 398. Saxe v. Walworth Manuf. Co. 191 Mass. 338. For these reasons the defendant’s requests that “There is no evidence sufficient to warrant the jury in finding:. . . That any defect in the hardening of this blade could have been discovered by any reasonably careful inspection of the same” and that “There is no evidence sufficient to warrant the jury in finding: . . . That the defendant was negligent in failing to discover that this blade was improperly hardened” should have been given. The trial judge ruled that there was no duty to furnish any different tools from those which were used on March 1, 1920, provided the danger of using those furnished was obvious and appreciated by the plaintiff. The plaintiff was an experienced tool sharpener. He had used both hard and soft hammers and was aware that the blades were made of high speed hardened steel and that there was danger of chipping the blades if they were struck with a hard steel hammer. Because of his knowledge and experience in this particular work, the dangers, if any, of using shims instead of wedges, and hard hammers instead of soft, were known to him. Requests for soft hammers made during the period of Federal control cannot affect the plaintiff’s rights in this case. In these circumstances the defendant owed no duty to the plaintiff to supply soft hammers for his use, and its requests to that effect should have been given. Wolfe v. New Bedford. Cordage Co. 189 Mass. 591. Miszoian v. Taft, 206 Mass. 227. Lemieux v. Boston & Maine Railroad, 219 Mass. 399. Ashton v. Boston & Maine Railroad, 222 Mass. 65. Wood v. Danas, 230 Mass. 587. There is nothing in the conclusion here reached inconsistent with Jellow v. Fore River Ship Building Co. 201 Mass. 464, and Anderson v. Marrinan,202 Mass. 193. [451] There was insufficient evidence to warrant a finding of negligence on any ground alleged and the defendant’s motion for a directed verdict should have been allowed. In accordance with the terms of the leave reserved, a verdict is to be entered for the defendant. So ordered.