*

Mass.)

LAMBERTI v. NEAL.

LAMBERTI v. NEAL
(148 N.E.)

(Supreme Judicial Court of Massachusetts. Middlesex. June 27, 1925.)

1. Master and servant 278(14)-Evidence held to justify finding of negligence in not discovering dangerous condition of machine and making it safe.

Evidence that defendant's foreman knew, before fatal accident, of complaints that employees were getting electrical shocks from coal conveyor, held to justify finding of jury that defendant was negligent in not discovering its dangerous condition, and making it safe.

2. Master and servant

107(8)-"Defect in condition of machinery" refers to safety of employees.

Words "defect in the condition of the * machinery," in Employers' Liability Act, § 1, cl. (1), do not refer to working capacity of machinery, but to its condition with regard to safety of employees.

3. Master and servant 107 (8)-To "remedy" a defect is to end dangerous condition.

When Employers' Liability Act, § 1, cl. (1), speaks of defect not having been remedied, it does not mean that machine must have been made perfect for working purposes, but that its dangerous condition must have been ended. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Remedy.]

"Defect"

4. Master and servant 107(8)
may be want of safety device.
"Defect" in condition of machinery, within
Employers' Liability Act, § 1, cl. (1), may be
want of a safety device or appliance.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Defect.]

5. Master and servant 278(1)-Showing of facts from which negligence may be inferred is sufficient.

In action for death of laborer from electrical shock while working on coal conveyor, plaintiff was not bound to prove specific defect or act of negligence to entitle her to recover; it being enough if she showed facts from which defendant's negligence might be inferred.

6. Master and servant 219(10)-Rule of assumed risk applies to obvious conditions and dangers.

Rule that employee assumes risks of business, and employer is not bound to change his structure to make it safer for employees, or to use most improved machinery, applies to all obvious conditions and dangers, which should be observed and appreciated.

7. Master and servant 219(10)-Rule of assumed risk does not protect employer, failing to exercise reasonable care to remedy defect not obvious.

Rule of assumed risk does not protect employer, if he has failed to exercise reasonable care to discover and remedy defects that are not obvious in condition of ways, works, and machinery.

8. Master and servant 219 (7)-Risk of elec-
trical current held not obvious; "safety
ground wire."

That motor operating coal conveyor was
plainly marked 550 volts, and that a person
could see that no wire connected its frame with
the ground, did not make risk of receiving fatal
one; a "safety ground wire" being one making
electrical current through coal chute an obvious
direct connection between framework on which
motor sat and the ground, whereby leakage of
electricity was carried into the ground.

9. Master and servant 106(1)—Purchase of
machinery from reputable manufacturer not
discharge of master's duty, where dangerous
condition was due to absence of safety device.
That motor was purchased from reputable
manufacturer did not show employer's discharge
of whole duty, where he had incorporated it into
his coal chute in accordance with plan of engi-
neer, and dangerous condition complained of was
in not attaching adequate safety device, or in-
stalling transformer to reduce current, or in
other ways making it reasonably safe.

10. Master and servant 105(2)-That same
kind of machines are commonly used is no de-
fense.

If employer sets employees to work on or near a machine, with the concealed danger of its becoming charged with current of electricity which, in exercise of reasonable care, he ought to have made safe, even if machine is safe, and employer in exercise of reasonable perfect in mechanism, but if unsuitable and uncare ought to have known it, it is no defense to show that same kind of machines are commonly used in work similar to his.

11. Master and servant 103(1)-Employer, not discharged from duty by showing compliance with requirements of electrical inspector, or engaging engineer to install wires properly.

Where duty of using reasonable care to see that coal conveyor and motor were so erected that they would not carry fatal electrical current might have been found to be personal duty, employer was not relieved by showing compliance with requirements of inspector of wires, or engagement of competent engineers and electricians to design and install wires and apparatus properly, or by following their advice. 12. Master and servant 125(1)—Employer not discharged from duty by lack of knowledge ground wire would be additional protection.

Employer was not discharged of personal duty to use reasonable care to see that coal conveyor and motor were so erected and maintained that they would not carry fatal electrical current, because he had no knowledge that safety ground wire would be additional protection.

103(1)—Employer 13. Master and servant not discharged from duty by showing delegation to another.

Employer was not discharged from personal duty of using reasonable care to see that coal conveyor and motor were so maintained that they would not carry fatal electrical current by delegation of performance of such duty to another, whether in his service or not.

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14. Master and servant

270(10)—Evidence | conveyor at the time of said injury to Domrelating to safety ground wire and transform- inic Lamberti, the verdict must be for deer to reduce voltage properly received.

In action for death from electrical current while defendant's decedent was working on coal conveyor, on issue whether defendant had used reasonable care to furnish safe machinery, plaintiff held within rights in introducing evidence relating to safety ground wire and transformer to reduce voltage of motor.

15. Trial 260 (8)-Refusal of request held without error, in view of instruction given.

Where jury were instructed in substance that plaintiff could not recover, unless she proved her husband died from electric shock resulting from negligence for which defendant was responsible, there was no error in refusing defendant's request to charge that, if electricity was not turned on at time of injury, verdict

must be for defendant.

fendant.

P. M. Foss, of Boston, for plaintiff.
H. L. Boutwell and F. A. Cross, both of
Boston, for defendant.

SANDERSON, J. In this action the plaintiff seeks to recover damages for the death, without conscious suffering, of her husband, Dominic Lamberti, on July 28, 1919, while employed as a laborer in the defendant's coal yard in Malden. The declaration is in two counts, both for the same cause of action; the first alleging, in substance, that Lamberti was killed by reason of a defect in the condition of the ways, works, or machinery, arising from or not remedied in consequence of the negligence of the defendant, or of a person in his service intrusted with the duty of seeing that they were in that the death was caused by the negligence proper condition; and the second alleging of a person in the service of the defendant who was exercising superintendence. defendant's answer is a general denial. The jury returned a verdict for the plaintiff and the case is before us on the defendant's exceptions to the admission of evidence and to rulings given and refused by the trial judge.

The

On the date of his death Lamberti was assisting in unloading a coal car, using for the purpose a conveyor, with an endless belt supported by a metal framework operated by an electric motor mounted on an iron truck. The coal was carried upward from the car, and at the delivery end of the machine were two sheet iron chutes through which it was delivered to a pile in the defendant's shed. These chutes were metallically connected with the conveyor. The

18. Appeal and error 930 (2)-Jury presum-electric current came from the Malden Eleced to have disregarded stricken evidence. Where electrical code was admitted, and evidence thereof afterwards stricken out, it must be presumed that jury disregarded it.

19. Trial 54(1) - Admission of electrical code for limited purpose held not ground for exception.

Electrical code held admissible to enable experts to refer to it as basis for opinion and admission for such purpose gave defendant no good exception, especially when no witness based his opinion thereon.

tric Company, and was furnished to the defendant from the street supply, by means of a cable with terminal attachment designed for plugging into outlets in various parts of the defendant's plant. The main feed wire came from the Malden Electric Company and carried a current of 2,300 volts, which was transformed, a few hundred feet from the defendant's coal shed, to a secondary circuit carrying approximately 550 volts, and from the point of transformation the current was distributed on the same secondary

Exceptions from Superior Court, Middlesex circuit to the defendant, the Malden KnitCounty; H. A. Dubuque, Judge.

Action of tort by Rosa Lamberti against Enoch E. Neal to recover for death tiff's husband, Dominic Lamberti.

of

Verdict

ting Mills, and others. On the day of the accident this circuit was actually carrying from 570 to 580 volts. It was owned and plain-maintained by the electric company, and the testimony was undisputed that the comExcep- pany's responsibility ended at the service connection in the defendant's coal yard. The Defendant requested court to rule that, if wires and cables carrying the current withelectricity was not turned on to said coal, in the defendant's plant had been installed

for plaintiff, and defendant excepts.

tions overruled.

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(148 N.E.)

for him by competent electricians, author- [ practice for many years had been to equip ized and directed to install them in a proper stationary motors with wires of this kind; and safe manner. The conveyor was modern, having been put into commission in November, 1918; the motor was of high grade, standard make, and was controlled by an iron switch metallically connected with the framework of the conveyor, so that if the framework was charged with electricity a person putting his hand upon the switch would receive a shock. The jury could have found that there was moisture in the coal where Lamberti stood, that "a moisture ground" could pass a fatal current, and that a current with a voltage of 550 is dangerous to human life.

The defendant was absent from the commonwealth at the time of the accident. Testimony was introduced tending to prove that before that time complaints of slight shocks from the machine had been made to the defendant's foreman; that just before Lamberti died a fellow workman was standing at the discharging end of the coal chute shoveling coal, with one hand on the iron part of the shovel, and received a shock of electricity through the chute when the current was turned on by the foreman, who was at the switch using a stick for the purpose; that at the same time Lamberti cried out, falling forward across the chute; that the current was then shut off, and Lamberti rolled off the chute unconscious and did not

thereafter shows signs of consciousness. Tests made soon after the accident disclosed a leakage of electricity to the frame of the conveyor which should not have existed, and the same condition was found the day after the accident. The discovery was also made that one wire of the secondary circuit

but there was testimony tending to prove that at the time of the accident no good way of attaching them to portable motors was known, that they were not in general use, and that it was common practice to use a 550-volt motor, for coal conveyors. Upon conflicting evidence it could have been found that such wires could and should have been attached to the defendant's motor, and that in no other way could a portable 550-volt machine be made safe. Testimony also was introduced from which the jury might have found that a 550-volt motor could not be safely installed on a portable machine; that a current of 110 or 220 volts would do the defendant's work as effectively as one of higher voltage; that this lower voltage could be obtained by the installation of a transformer in the defendant's plant to reduce the current; and that if such lower voltage had been used the machine would have been safe.

[1-4] As was said in O'Donnell v. Boston Elevated Railway, 205 Mass. 200, 202, 90 N. E. 977:

* Electricity is a highly dangerous servant, and the defendant employing [it] for its own purposes is properly held to a correspondingly high degree of care in its use."

The evidence tending to prove that the defendant's foreman knew before the accident of complaints that employees were getting electric shocks from the coal conveyor would justify the jury in finding that the defendant ous condition and making it safe. Mooney was negligent in not discovering the dangerv. Connecticut River Lumber Co., 154 Mass.

condition of the *k

本 machinery" in

was gounded by contact with a metallic pipe 407, 28 N. E. 352. The words "defect in the at the Malden Knitting Mills. This was a the Employers' Liability Act, St. 1887, c. 270, serious matter, demanding immediate at-§ 1, cl. (1), do not refer to the working capactention, and was repaired the afternoon of July 28, or the next morning.

The plaintiff contended that the defendant was negligent in setting her intestate to work at or near a coal conveyor which had concealed defects dangerous to human life; and she introduced evidence tending to prove that in either one of two ways this condition might have been remedied and the accident avoided, namely: (1) By the installation of a safety ground wire; or (2) by the reduction of the voltage of the electric current. Many of the defendant's exceptions relate to these two matters.

A safety ground wire is one making a direct connection between the framework on which the motor sets and the ground, whereby any leakage of electricity from the motor or wires to the framework is carried into the ground, thus preventing shock to a person coming in contact with the machine. There was no such wire attached to this machine. It appeared in evidence that the 148 N.E.-30

ity of the machinery but to its condition with regard to the safety of the employees. When the statute speaks of a defect not having been remedied, it does not mean that the machine must have been made perfect for working purposes, but that its dangerous condition must have been ended. Willey v. Boston Electric Light Co., 168 Mass. 40, 46 N. E. 395, 37 L. R. A. 723. The defect may be the want of a safety device or appliance. Myers v. Hudson Iron Co., 150 Mass. 125, 22 N. E. 631, 15 Am. St. Rep. 176.

[5-9] The plaintiff was not bound to prove a specific defect or a specific act of negligence to entitle her to recover. It is enough if she shows facts from which negligence may be inferred. Erickson v. American Steel & Wire Co., 193 Mass. 119, 123, 78 N. E. 761; Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 202, 62 N. E. 379. The rule that an employee assumes the risks of the business, and the employer is not bound to change his structure to make it safer for the employee

or to use the most improved machinery, ap- in the ordinary and expected way," was one plies to all obvious conditions and dangers which rested on the employer himself; and which should be observed and appreciated. he cannot free himself from responsibility Mutter v. Lawrence Manuf. Co., 195 Mass. for the discharge of his personal duty, by 517, 81 N. E. 263; McKenna v. Gould Wire showing that he complied with the requireCord Co., 197 Mass. 406, 83 N. E. 1113; Riv-ments of the Malden inspector of wires or ers v. Richards, 213 Mass. 515, 100 N. E. engaged competent engineers to design and 745. But this rule does not protect the em- competent electricians to install the wires ployer if he has failed to exercise reasonable and apparatus properly; nor by proving that care to discover and remedy defects that are he followed their advice, and adopted their not obvious in the condition of the ways, methods and did the work as recommended works and machinery. The facts that the by them with the approval of the inspector of motor was plainly marked 550 volts and that wires; nor by proving that he had no knowla person could see that no wire connected edge that a safety ground wire would be its frame with the ground did not make the an additional protection; nor by delegating risk of receiving a fatal electric current the performance of this duty to another, through the coal chute an obvious one. The whether in his service or not. Erickson v. defense that the machine was purchased American Steel & Wire Co., supra; Chisholm from a reputable manufacturer does not v. New England Telephone & Telegraph Co., show that the defendant has done his whole 185 Mass. 82, 69 N. E. 1042; McMahon v. duty, when it appears that he has incorpo- McHale, 174 Mass. 320, 54 N. E. 854; Myers rated it into his structure in accordance v. Hudson Iron Co., supra; Kirk v. Sturdy, with the plan of his engineer and the dan-187 Mass. 87, 72 N. E. 349.

gerous condition complained of is in not at- [14, 15] On the issue whether the defendtaching adequate safety devices or installing ant has used reasonable care to furnish safe a transformer to reduce the current to a low-machinery, the plaintiff was within her er voltage, or in other ways making it reason- rights in introducing the evidence relating ably safe. Erickson v. American Steel & to a safety ground wire and a transformer Wire Co., supra. It is not contended that to reduce the voltage of the motor. Mcthere was any defect in the conveyor as pur- Mahon v. McHale, supra. The jury were chased from the manufacturers, and cases instructed in substance that the plaintiff like Roughan v. Boston & Lockport Block could not recover unless she proved that her Co., 161 Mass. 24, 36 N. E. 461, Reynolds husband died from an electric shock resultv. Merchants' Woolen Co., 168 Mass. 501, 47 ing from negligence for which the defendN. E. 406, and Fuller v. New York, New Hav-ant was responsible; and they must have en & Hartford Railroad, 175 Mass. 424, 56 understood that if the current were not N. E. 574, do not apply.

[10] The jury were instructed, in substance, that a defendant is not bound to provide for his employees the latest and safest appliances or any particular machine, even if it would be more suitable and less dangerous, in case the one provided is fit and proper. Wolfe v. New Bedford Cordage Co., 189 Mass. 591, 592, 76 N. E. 222. If, however, he sets his employees to work on or near a machine with the concealed danger of its becoming charged with a current of electricity which, in the exercise of reasonable care, he ought to have made safe, it is not a defense for him to show that the same kind of machines are commonly used in work similar to his. Hill v. Winsor, 118 Mass. 251; Wilson v. Alexander, 230 Mass. 242, 119 N. E. 754. This is true, even though the machine itself be perfect in mechanism, if it is found to be unsuitable and unsafe and if the defendant knew this or in the exercise of reasonable care should have known it. Wilson v. Alexander, supra.

[11-13] In the case at bar it might be found that the duty of using reasonable care to see that the coal conveyor and motor were so erected, protected, and maintained that they would not carry a fatal electric current to an employee working near them

turned on the verdict would be for the defendant. For the reasons, stated, the requests numbered 11, 18, 19, 20, 22, 24, 25, 28, 34, and 38 were properly refused; and for the same reasons the exceptions saved to the testimony of the plaintiff's electrical expert, Puffer, and to the testimony of another witness called by the plaintiff, relating to the installation and function of a safety ground wire and of a stepdown transformer to reduce the voltage of the current, must be overruled. A witness called by the defendant testified in cross-examination, without objection, that in his opinion there should have been a safety ground wire on the defendant's coal conveyor at the time of the accident and that a 110-volt motor could be used on that conveyor to do the defendant's work.

[16] The defendant asked the trial judge to rule that the doctrine of res ipsa loquitur does not apply to the case at bar, and that the plaintiff cannot recover by virtue thereof unless competent affirmative evidence is submitted to warrant a legitimate inference of negligence on the part of the defendant or of some person in his employ. The defendant contended that the mere fact that Lamberti fell over the coal chute and died is not evidence of death from an electric

(148 N.E.)

evidence that he based that opinion on the information contained in the code.

All exceptions argued have been considered and no reversible error is discovered. Exceptions overruled.

CODMAN v. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 29, 1925.)

6-Statute held prospective

G. L. c. 160, § 71, being substantial re-enactment of St. 1907, c. 585, forbidding railroads to acquire stock in other railroads operated within commonwealth, was by express terms prospective only in operation, and did not apply to purchases of stock made prior to enactment.

shock. The judge clearly left the issue of Works Co., 159 Mass. 311, 24 N. E. 523. It the cause of death to the jury to decide up- did not appear, however, that it was SO on the whole evidence, a part of which was used. One witness referred to it, but testhe testimony as to the previous sound phys-tified to his own opinion, and it was not in ical condition of the deceased, the opinion of a physican that death was caused by an electric shock, and the evidence that a fellow employee got a shock through the coal chute at the time Lamberti met his death. The judge also submitted to the jury the question whether the defendant was negligent in not equipping the frame of the motor with a safety ground wire or in not installing a transformer to reduce the current to a lower voltage or in not discovering and remedying the cause of electric shocks previously received by employees; and instructed them in substance that if Lamberti died. Railroads of an electric shock this did not in and of only. itself independently of any other fact prove negligence, but that the fact of his death by electricity, if that were a fact, might be considered with the other evidence on the question of the defendant's negligence. The plaintiff placed the ground of her recovery on special causes and did not rely on the mere happening of the accident to prove negligence and the case was so submitted to the jury. Cook v. Newhall, 213 Mass. 392, 101 N. E. 72. This request was given in substance and the charge concerning it was sufficiently favorable to the defendant. [17] The request to the effect that there could be no recovery if the only specific defect was in the circuit of the Malden Electric Company or in the premises of its customers other than the defendant, and that there can be no recovery for any defect beyond the wires, machinery, ways, and works of the defendant, could not have been given. Upon the testimony the jury could have found that the employer had the duty of installing a safety ground wire to guard employees against the danger of receiving an electric shock from the accidental escape of electricity, whether due to a defect in the defendant's premises or outside. The charge made it clear that there could be no recovery unless there was a defect in the condition of the ways, works and machinery of the defendant in his plant for which he was responsible.

2. Railroads 18-Railroad held not prohibited from exercising ownership of stock in other railroad.

Under St. 1909, c. 519, creating Boston Railroad Holding Company, the New York, New Haven & Hartford Railroad Company is not prohibited from owning stock of the Boston & Maine Railroad, through its ownership of stock in the Holding Company, or from exercising ownership of such stock in accordance with chapter 519, despite G. L. c. 160, § 71, and the Act of 1909 is not superseded by St. 1914, c. 766.

3. Railroads 18-Statute held not contract between commonwealth and railroad waiving latter's rights under former act.

St. 1914, c. 766, held not to constitute contract between commonwealth and the New

York, New Haven & Hartford Railroad Company, whereby terms of St. 1909, c. 519, authorizing railroad to own stock of another railroad through medium of a holding company were waived or abrogated.

4. Constitutional law 48-Every presumption favors validity of statute enacted by general court.

Every rational presumption is made in favor of validity of statute enacted by the general court, as against claim of conflict with federal statutes relating to interstate commerce.

5. Courts 489 (8)-Relief for violation of Sherman Anti-Trust or Clayton Acts only in United States court.

[18, 19] The exceptions to the admission of the electric code must be overruled; the evidence was afterwards stricken out and it is to be presumed that the jury disregarded it. Todd v. Boston Elevated Railway, 208 Mass. 505, 94 N. E. 683, Ann. Cas. 1912A, 1005. The qualifying words in the order of exclusion, to the effect that it was without prejudice to the right of experts to refer to the code as the basis for an opinion, gave the defendant no good exception. The code properly might be used for the limited pur- Case reserved from Supreme Judicial pose stated. Finnegan v. Fall River Gas Court, Suffolk County.

the Sherman Anti-Trust Act (U. S. Comp. St. When a party seeks relief for violation of §§ 8820-8823, 8827-8830) or the Clayton Act, he must address a court of United States and not of a state.

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