Shea v. American Hide & Leather Co. , 226 Mass. 355 ( 1917 )

Carroll, J.

In the previous decision in this case (221 Mass. 282) the defendant’s exceptions were sustained. At the new trial in the Superior Court there was a verdict for the plaintiff, and the defendant excepted to the refusal of the judge to direct a verdict in its favor.

Edmund Shea, the intestate, was employed on a drum-setting machine, which is described in Shea v. American Hide & Leather Co. 221 Mass. 282. He began work Thursday, April 25, 1912, and was killed on the morning of the following Monday. There was evidence that the machine did not “seem to set or run level in the boxes;” the cylinder boxes were loose, as were the cap bolts, and, in the opinion of at least one witness, the cylinder was too large for the frame. This defective condition existed for some time before the day of the injury and the defendant’s superintendent had been informed of it. The defendant introduced evidence tending to show that the accident happened because of a hidden, flaw on the inside of one of the arms. The jury were not bound to believe this evidence, Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, and it was contradicted, a witness for the plaintiff testifying that there was no flaw or defect in the arm and it was not a defective casting. The negligence of the defendant, therefore, properly was a question for the jury. Shea v. American Hide & Leather Co., supra.

At the first trial, reference was made to the hood or bonnet, which came down over the front of the cylinder and hid the view of the journal boxes. At the last trial it was in evidence that while the hood covered the cylinder, it did not conceal the journal boxes. This fact did not make the danger obvious, and was not sufficient to show that the intestate was careless or that he assumed the risk. Although he was a man of experience in operating leather machines, no information or warning was given him that this particular machine was defective or out of repair. The screws were in place and it was in condition for use when left by the operator on April 24. From his evidence it properly might be inferred that no defect was visible; and there was nothing to show that during the time of Shea’s employment its appearance had been changed.

On the morning of April 29, about seven o’clock, shortly after the machinery had been started, a crash was heard. The intestate was found “as if thrown backward on a pile of leather” in front of the machine, the pulleys of which were broken, the belts and boxes torn loose, one of the arms bent at right angles, and on the drum was a piece of leather. The cylinder was “right across Shea,” and one end of it was over his chest. Before the machinery was set running, at about quarter to seven o’clock, the intestate had been seen putting on his apron. It did not appear who started the machine, but it was running at the time of the injury. Shea was near it, getting ready to begin his work and naturally it would be his duty to start it; in the absence of evidence to the contrary, the fair inference would be that he did so.

There was no direct evidence, as at the previous trial, that Shea put a piece of leather on the drum. But a piece of leather was found there after the injury, and, as it was his duty to place it there, the jury properly might find that it was done by him. The defective condition of the machine caused the injury and death. The employee was in the discharge of his duty and sufficient circumstances are shown to exclude any act of negligence on his part. Shea v. American Hide & Leather Co., supra.

Exceptions overruled.