Negligence, Employer's liability. At the trial of an action against the proprietor of a machine shop for personal injuries received by an employee caused by a spark flying from the pin of a tube expander into his eye when he struck the pin with his hammer, where there is evidence tending to show that the head of such a pin usually is not hardened, but is left soft, and that, when struck with a hammer used for such work, if properly annealed, it will not splinter but will "upset or roll over," and the defendant admits that the pin of the expander furnished to the plaintiff had been hardened, the question whether the defendant negligently furnished to the plaintiff a defective tube expander should be left to the jury.
A machinist, in entering the employ of the proprietor of a machine shop, does not assume the risk of injury due to a tube expander, which is furnished to him by his employer, being defective because it is too hard and because it therefore causes sparks to fly from it when it is struck with such a hammer as ordinarily is used for the purpose, if it appears that such a defective condition could not be discovered by visual inspection.
BRALEY, J.
It would have been competent for the jury to find from the testimony of the experienced machinists called by the plaintiff that the head of the pin of a tube expander is not usually hardened, but left soft, and that when struck with a hammer used for such work, if properly annealed it will "upset or roll over," but will not splinter, nor fly. The defendants, having engaged to provide suitable appliances, admitted that the expander furnished had been hardened, and the inference properly could have been drawn, that because of this condition it had been rendered brittle and unsuitable for the plaintiff's use. It was while the plaintiff was using this defective expander in the usual course of his work to enlarge boiler tube, that a small piece of steel flew from the head, destroying the sight of his left eye.
But, if there was evidence of the defendants' negligence, they endeavor to retain the verdict ordered in their favor upon the ground that the plaintiff assumed the risk. It often has been decided that a servant does not assume the risk of defective ways, works or machinery whether at common law or under R.L.c. 106, § 71, unless the defects are either known, or obvious. Jellow v. Fore River Ship Building Co. 201 Mass. 464. O'Maley v. South Boston Gas Light Co. 158 Mass. 135. If believed, the plaintiff's evidence would have warranted a finding that the defective condition of the expander could not have been discovered by visual inspection, and that, although he was a machinist familiar with the working of iron and the ordinary use of steel tools, he never in his previous experience had observed a piece to break from them, or a flash, followed by a flying spark of steel, upon their being struck with a hammer when in use, until the accident. In entering into the defendants' employment, he moreover had the right to rely upon the assumption, that reasonably safe appliances would be provided, and to what extent, if at all, his previous general knowledge and the appearance of the expander should have led him as an ordinarily prudent man to test the hardness of its head before using it, was a question of fact for the jury. If the plaintiff assumed the risk of dangers incident to the business, he did not as matter of law assume risks of which, it could have been found, he neither had any knowledge nor any reasonable cause to anticipate. Jellow v. Fore River Ship Building Co., ubi supra.
We are accordingly of opinion that the case should have been submitted to the jury under appropriate instructions.
Exceptions sustained.