Lynch v. Lynn Box Co. , 200 Mass. 340 ( 1909 )

Morton, J.

This case was before this court in 194 Mass. 307 on the plaintiff’s exceptions to a ruling directing a verdict for the defendant, and it was there held that the case should have been submitted to the jury. The case has been tried a second time and it comes before us now upon a report by the presiding judge made pursuant-to a stipulation entered into by the parties at the close of the plaintiff’s evidence that the jury should “ return a verdict for the plaintiff in the sum of two thousand dollars and the case ... be reported to the Supreme Judicial Court for its determination on the question whether upon the evidence presented there was an issue proper for submission to the jury.” If there was, judgment is to be entered on the verdict. If there was not, judgment is to be entered for the defendant.

The defendant does not seriously contend that there was not evidence warranting a finding that the machine was defective, and that its condition was due to negligence on the part of the defendant. Neither does it seriously contend that the evidence did not warrant a finding that the accident was due to the defective condition of the machine. Its main contentions are that the risk was an obvious one and that the plaintiff assumed it, and was not in the exercise of due care.

The evidence, especially in regard to the plaintiff’s knowledge of the condition and operation of the machine, is fuller than it was at the former trial, but it is not such, we think, as to warrant us in saying that there was no issue for the jury. The testimony in regard to the plaintiff’s occupations before he entered the defendant’s employment and as to what he did after he entered its employment down to the time of the accident was substantially the same as at the former trial. There was no testimony at this trial as there was at that from the defendant’s superintendent that he instructed the plaintiff in regard to the operation of the machine, and the plaintiff’s testimony that he received no instruction was left uncontradicted. The evidence at this trial tended rather to show that the plaintiff had worked less upon the machine than appeared to have been the case at the previous trial, and that his work upon it had been more intermittent and desultory. But the defendant contends that in view of the plaintiff’s familiarity with the condition and operation of the machine as shown by his testimony at this trial, and in view of the fact that during the time that he worked upon the machine boards hit the spreader and caused his hand to jump “ real often,” to quote-his words, he must be deemed to have understood that such an accident as occurred might happen and therefore to have assumed the risk, and it farther contends that these facts render the case as now presented distinguishable from the case presented at the other trial. But it does not follow as matter of law that, because the plaintiff knew that the machine was defective and that boards at times hit the spreader and caused his hand to jump, he appreciated and assumed the risk of such an accident as happened. He might well have continued to work upon the machine without understanding or appreciating the fact that his hand was liable to be thrown on to the saw by the tendency which the machine had to make his hand “ jump ” when a board hit the spreader. His knowledge in regard to the machine and its operation would not necessarily preclude him from recovery. It was for the jury to say, taking all the circumstances into account, whether he appreciated the danger and assumed the risk. It could not be held that as matter of law he assumed the risk. Wagner v. Boston Elevated Railway, 188 Mass. 437. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. Urquhart v. Smith & Anthony Co. 192 Mass. 257. Cahill v. New England Telephone & Telegraph Co. 193 Mass. 415.

He testified that he was operating the machine in the usual way when injured and it could not be ruled, therefore, as matter of law that he was not in the exercise of due care.

Judgment on the verdict.