Kushnizki v. New England Biscuit Co.

96 N.E. 67, 210 Mass. 177, 1911 Mass. LEXIS 1025

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1911
• Status: Published

Opinion

Braley, J.

The plaintiff among other duties of his employment was required to clean the dies and cutters of a “ cookie machine,” and while about the work it was set in motion, cutting off the thumb of his right hand. It was in evidence that the machine when in operation did not become clogged, and the plaintiff had been instructed to clean only when it had been stopped for the purpose just before the close of the day’s work. The evidence would have warranted the jury in finding, that one Hutchins, whose orders to clean the machine where he was injured the plaintiff obeyed, had been entrusted with superintendence as his sole or principal duty, and that not only in cleaning the gears did the plaintiff follow the instructions given to him, but if Hutchins, who stood by while the work was being doné, had not started the machine without giving the plaintiff any warning, the accident would not have happened. Griffin v. Joseph Ross Corp. 204 Mass. 477. Carney v. A. B. Clark Co. 207 Mass. 200, 206, 207.

The defendant’s first contention is, that because the plaintiff put his thumb on the gears instead of using the brush he was careless. But the plaintiff knew that the machine had been stopped at the usual time for him to clean, and had the right to expect that it would not be started until the process had been finished. Moreover the personal supervision of the superintendent, accompanied by his directions to the plaintiff while performing the work, was an assurance that the machine would remain at rest until the gears had been cleaned, or that he would be warned before it was deliberately set in motion. The question of the plaintiff’s due care was for the jury. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586, 588. Jellow v. Fore River Ship Building Co. 201 Mass. 464. Griffin v. Joseph Ross Corp. 204 Mass. 477, 481.

It is next urged that the act of Hutchins in starting the machine was the act of a fellow servant and not an act of superintendence. But his decision to put the machine in motion was within the scope of his authority, and caused the injury. O’Brien v. Look, 171 Mass. 36. Roche v. Lowed Bleachery, 181 Mass. 480. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586. McPhee v. New England Structural Co. 188 Mass. 141. Silvia v. New York, New Haven, & Hartford Railroad, 203 Mass. 519. Mooney v. Benjamin F. Smith Co. 205 Mass. 270.

The exception to the exclusion of evidence has been waived; and as the first, second, sixth and seventh requests upon which the defendant relied at the argument were rightly refused for the reasons above stated, its exceptions must be overruled.

So ordered.