Negligence, Employer's liability. At the trial of an action by an employee against his employer under R.L.c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff while at work on a concrete mixing machine, there was evidence tending to show that the plaintiff was familiar with such machines and had been working upon the one upon which he was injured on alternate days for about a week; that his duty was to stand on a platform, with one set of gearing at his back and another at his side, and shovel sand, which was placed in a pile before him by other employees, to other men toward the side where one set of the gearing was; that when he first went to work on the machine the gearings were covered with boards, but that two days before the accident the board coverings had been broken by a boom of a derrick, at which time the plaintiff had told a superintendent of the defendant that it was dangerous for him to work where he was with the gearing uncovered and the superintendent had "told him to go ahead, that he would get it fixed," and thereafter on that day the plaintiff had worked on the machine. When he returned to the machine on the day of the accident, the coverings had not been replaced and he again called the superintendent's attention to the danger of his position and received the same assurance as before. The only place that the plaintiff could stand as he worked was six inches in front of one set of gearing. The platform had many pieces of cracked stone upon it. The plaintiff wore a jumper which he did not button. As he worked, he stumbled somewhat on a piece of stone, the back of his jumper became caught in the gearing, he reached around with his hand to free himself, his sleeve became caught and his hand was drawn into the cogs and crushed. Held, that the questions, whether the plaintiff had assumed the risk of the injury which he received, and whether when injured he was in the exercise of due care, were for the jury.
BRALEY, J.
The action is brought under R.L.c. 106, § 71, now by codification St. of 1909, c. 514, § 127. At the close of the plaintiff's evidence a verdict was ordered for the defendant, and the case is before us on a report.
It is plain, that there was ample evidence of the defendant's negligence, and the only questions are, whether as matter of law the plaintiff either assumed the risk or failed to exercise due care.
The guard which protected the cogs of the mixer was a part of the defendant's works and machinery when the plaintiff entered its employment. Donahue v. C.H. Buck Co. 197 Mass. 550. By his contract of service, although he accepted the permanent appliances as he found them, he assumed no risk of injury from an unguarded mixer which in operation might endanger workmen while shovelling in the sand and cement. Mahoney v. Dore, 155 Mass. 513. Jellow v. Fore River Ship Building Co. 201 Mass. 464, 467. The guard of the mixer where the plaintiff worked as a shoveller having been struck and displaced by the boom of the derrick, he called the attention of the defendant's foreman to its condition. It is beyond dispute that with knowledge of the unguarded cogs the plaintiff continued at his work until, his clothing having been caught, his hand afterwards was drawn into the gears and crushed. But if assumption of risk by conduct of the employee in using machinery which becomes defective after he enters the service of the employer often may be so blended with contributory negligence as to be indistinguishable, yet, where it is claimed that the plaintiff voluntarily took the chance of an injury for which he seeks damages, the defendant avoids liability on the ground that the plaintiff, by thus incurring the danger, agreed to relieve it from the possible harmful results. Jellow v. Fore River Ship Building Co. 201 Mass. 464, 467. The burden of proving his own due care is made by the statute a condition precedent to recovery. It must, however, have appeared before the defense of assumption of risk could prevail, that with a full appreciation of the peril, he consented to expose himself to the chance of losing his hand. It was uncontroverted that after the mixer became defective the plaintiff complained to the foreman, whom the jury could find had been entrusted with superintendence. Reardon v. Byrne, 195 Mass. 146. The foreman not only assured him that the defect would be remedied, but instructed him to remain at work. The plaintiff was in this situation, either he must obey, or by refusal face the possibility of a discharge, with loss of employment. The standard by which the character of his acts should be ascertained, when thus called upon to decide what he should do, is the ordinary conduct of men placed in similar circumstances. In the management of the defendant's business, to stop the machine until the carpenters to whom the foreman referred could make repairs, might cause pecuniary loss, and in the judgment of the foreman the mixer could be temporarily run, if the plaintiff was warned of the danger. If the jury would have been justified in saying the plaintiff must have been aware that the guard was off, they also could properly have said, that he relied upon the promise, which he had every reason to believe would be kept as soon as the carpenters were ready. A further finding that the plaintiff might reasonably assume the order would not have been given, if his superior deemed its execution exposed him to great personal hazard, would have been warranted. It would result from these findings, that he conducted himself with ordinary prudence and was not bound to anticipate the consequences which befell him.
We are unable to distinguish in principle the present case from recent decisions by which it must be governed, and where we have held that the plaintiff's assumption of risk and want of due care were for the jury to determine. Counsell v. Hall, 145 Mass. 468. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. Mahoney v. Dore, 155 Mass. 513, 519. McKee v. Tourtellotte, 167 Mass. 69. McKinnon v. Riter-Conley Manuf. Co. 186 Mass. 155. Wagner v. Boston Elevated Railway, 188 Mass. 437. Urquhart v. Smith Anthony Co. 192 Mass. 257. Cahill v. New England Telephone Telegraph Co. 193 Mass. 415. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11, 14. Baldwin v. American Writing Paper Co. 196 Mass. 402, 407. Flynn v. Connecticut Valley Street Railway, 196 Mass. 587, 590. Berube v. Horton, 199 Mass. 421. Herlihy v. Little, 200 Mass. 284. Lynch v. Lynn Box Co. 200 Mass. 340. Hanley v. Boston Elevated Railway, 201 Mass. 55. O'Toole v. Pruyn, 201 Mass. 126. Shannon v. Willard, 201 Mass. 377. Jellow v. Fore River Ship Building Co. 201 Mass. 464.
In accordance with the terms of the report, judgment is to be entered for the plaintiff for the stipulated amount.
So ordered.