" So in Mundle v. HillMfg. Co., 86 Me. 400, [30 A. 16], the supreme court of Maine said: "One does not voluntarily assume a risk, within the meaning of the rule that debars recovery, when he merely knows there is some danger without appreciating the danger." (See, also, Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, [31 Am. St. Rep. 537, 29 N.E. 464]; Jarvis v. Coes Wrench Co., 177 Mass. 170 [ 58 N.E. 587]; Labatt on Master Servant, sec. 320.) In Nofsinger v. Goldman, 122 Cal. 609, [55 P. 425], an action by a laborer employed about a threshing machine to recover damages for injuries received by him through an explosion of the boiler, the court said that an instruction declaring that the plaintiff could not recover if he knew of the alleged defects of the machinery, or had equal opportunity with the defendants of knowing such defects, was rightfully refused.
He gave the order to shut off the power between Taunton and Fall River, and this was done; the line was short circuited as required by the rules, and he informed the plaintiff the lines were dead. He is not shown to have had any knowledge that a current would be induced into the wires by turning on the power north of Taunton. If such a danger existed and it was caused by the negligence of the defendant, there was a duty to warn the plaintiff. But it was the personal duty of the master, Jarvis v. Coes Wrench Co. 177 Mass. 170, and was not and could not be delegated to the superintendent so as to relieve the defendant itself of this responsibility. When Brooks told the plaintiff the wires were dead, there was no power in them — they were in fact dead — and they remained in this condition for some time. If they afterwards became alive, this did not happen because of any negligence of Brooks.
For a breach of this duty an action could be maintained against the defendant in behalf of any one injured by reason thereof, if the other requisites to the maintenance of an action were found to exist. Jarvis v. Coes Wrench Co. 177 Mass. 170, 172. Lavartue v. Ely Lumber Co. 213 Mass. 65, 66. But if the defendant discharged this duty, or if the mode of construction and the risk arising therefrom were fully known to its employees, or if they had in fact assumed that risk, the defendant owed them no duty to change the mode of construction or to abandon the use of the wider cars. Goldthwait v. Haverhill Groveland Street Railway, 160 Mass. 554. Thain v. Old Colony Railroad, 161 Mass. 353. Austin v. Boston Maine Railroad, 164 Mass. 282. Vining v. New York New England Railroad, 167 Mass. 539. Bell v. New York, New Haven, Hartford Railroad, 168 Mass. 443. Ryan v. New York, New Haven, Hartford Railroad, 169 Mass. 267. Quinn v. New York, New Haven, Hartford Railroad, 175 Mass. 150. Hall v. Wakefield Stoneham Street Railway, 178 Mass. 98. Ladd v. Brockton Street Railway, 180 Mass. 454. McLeod v. New York, New Haven, Hartford Railroad, 191 Mass. 389. Most of these cases were decided on the ground of assumption of risk, but they fu
Proulx v. J.W. Bishop Co. 204 Mass. 130. The defendant moreover was required to provide and to maintain a reasonably safe place for the performance of the work, and this duty had not been discharged if the jury were convinced that the refuse prevented the strips, while the saw was being operated in the usual manner, from remaining at the same level with the table until the process had been completed. Jarvis v. Cole Wrench Co. 177 Mass. 170. Silva v. Davis, 191 Mass. 47. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11, 14. Ruddy v. George F. Blake Manuf. Co. 205 Mass. 172. The declaration, even if no question of pleading has been raised, is sufficient to support the action, and in accordance with the terms of the report a majority of the court are of opinion that the verdict ordered for the defendant should be set aside, and judgment entered for the plaintiff in the sum of $2,500. So ordered.
Such a perilous condition is due to the fact that when the belt is loose it will not move so fast as the rolls; and if one then presses down upon the belt the friction between it and the rolls will be increased and the belt at once will be brought up to their speed. The quickness or jerk in the increase of the speed depends largely upon the degree of looseness of the belt. It cannot be said as matter of law that this danger of the workman's hand being thrown forward when pressure tightens a loose belt is an obvious one. It is not apparent to the eye of the inexperienced workman, but is hidden and obscure until disclosed by explanation or experience. Wheeler v. Wason Manuf. Co. 135 Mass. 294. Hanson v. Ludlow Manuf. Co. 162 Mass. 187. Jarvis v. Coes Wrench Co. 177 Mass. 170. Halley v. Nashua River Paper Co. 202 Mass. 164. The jury might well find that the plaintiff, unfamiliar with machinery, was not in fault for not realizing this danger, and that the defendant ought to have known of its existence, as it long had been known to the foreman of the room and to McDonald who operated the machine. Under the second count, for failure to furnish a reasonably safe machine, the same result is reached.
The cross-examination of Fuller, the foreman who set the plaintiff at work and who was called as a witness by the defendant, as well as the testimony of other witnesses, warranted a finding that there were serious dangers in doing the work, of which the plaintiff should have been warned. The case is very similar in many of its features to Wheeler v. Wason Manuf. Co. 135 Mass. 294, 296, and is governed by the decisions in that case and in Jarvis v. Coes Wrench Co. 177 Mass. 170, and Hanson v. Ludlow Manuf. Co. 162 Mass. 187. There was also evidence from which the jury might have found for the plaintiff on the fourth count, charging failure to supply the plaintiff with suitable machinery.
" He also testified that he knew that there were knives there and that if he put his hand on them he would get hurt. While the plaintiff's testimony as reported in the bill of exceptions would seem in some respects to have been disingenuous, it is plain, we think, that there was evidence that would have warranted the jury in finding that he was set to work on a dangerous machine without such warning or instruction as he should have had. He knew that there were knives and that if his hand got into them it would be injured. But he did not know, or at least there was evidence tending to show that he did not, of the liability of a board or plank to kick or jump while being planed, and of the danger arising therefrom. It cannot be said, we think, as matter of law, that the risk was an obvious one, or that he assumed it. Joyce v. American Writing Paper Co. 184 Mass. 230. Jarvis v. Coes Wrench Co. 177 Mass. 170. Wheeler v. Wason Manuf. Co. 135 Mass. 294. Hanson v. Ludlow Manuf. Co. 162 Mass. 187. There was also evidence tending to show that guards were in general use on such machines, and that a guard could have been used as the machine was being operated at the time of the accident, and would have served as a protection to an inexperienced person.
There was evidence that he received no definite or specific instructions as to the proper method of truing the roller or getting an impression of the knives upon it. See Jarvis v. Coes Wrench Co. 177 Mass. 170. The machine that he was working on was old, and was without guards such as were on other similar machines in the defendant's factory. There was evidence of defects discovered in it after the accident, and there was also testimony tending to show that some of these defects caused the roller to start suddenly and to draw the plaintiff's hand upon the knives, while if the machine had been in good repair there would have been but little danger.
will be observed that before the enactment of the Employers' Liability Act in Massachusetts the courts of that State held in line with our own with respect to the negligence of superintendents, and that Kenney v. Shaw ( supra) is in accord with the case of Cullen v. Norton ( 126 N.Y. 1), in which the employer was held not liable for the negligence of the superintendent of his quarry in not cleaning out a defective blast and in putting an employee at work near it, although he knew it had not exploded, and which subsequently did explode, killing the workman. The extent to which the courts of Massachusetts had gone prior to the enactment of our statute in interpreting the Employers' Liability Act, in so far as it related to the liability of the employer for the negligent acts of his superintendent, is illustrated by the cases of Davis v. N.Y., N.H., etc., Railroad, 159 Mass. 532 (holding him liable for the failure of his superintendent to warn a track repairer of an approaching train); Jarvis v. Coes Wrench Co., 177 id. 170 (failure to warn inexperienced workman of danger); O'Brien v. Nute-Hallett Co., Id. 422 (failure to inspect grain bin), and Prendible v. Connecticut River Mfg. Co., 160 id. 131 (failure to inspect temporary staging or to prevent it being overloaded). These cases are not cited with approval or disapproval so far as the specific acts of negligence decided by them are concerned, but only as illustrating the interpretation of the act by the courts of that State prior to the enactment of our own law.