Taylor v. Carew Mfg. Co.
| Citation | 3 N.E. 21,140 Mass. 150 |
| Parties | Samuel Taylor v. Carew Manufacturing Company |
| Decision Date | 22 October 1885 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Tort for personal injuries occasioned to the plaintiff while in the defendant's employ. At the trial in the Superior Court, before Mason, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.
Exceptions sustained.
W. G Bassett & E. W. Chapin, for the defendant.
G. M Stearns, (W. H. Brooks with him,) for the plaintiff.
OPINION
Devens J.
The plaintiff recovered only on the first count of his declaration, which alleged negligence on the part of the defendant in failing to guard or fence the elevator well in the basement where the plaintiff was set to work, so that he, while using due care, fell therein and was injured. There was no recovery on the second count, because of the ruling of the presiding judge. This count was for a failure to furnish such safeguards as, under certain circumstances, are provided for by the Pub. Sts. c. 104, § 14.
Without adverting, at this moment, to the questions raised as to the admissibility of evidence offered by the defendant, the first inquiry is whether there was any evidence on behalf of the plaintiff upon which the jury could legally have found a verdict in his favor. If there was, the question of its weight or value cannot be considered by us. Heywood v. Stiles, 124 Mass. 275.
The jury would perhaps be warranted in finding that the defendant was negligent in leaving the well or elevator hole, which was situated in a dark basement where its servants were obliged to go for many purposes, open and unguarded by a fence or any other suitable protection. It was the duty of the defendant to find and provide for its servants a reasonably safe place in which to do their work. Coombs v. New Bedford Cordage Co. 102 Mass. 572. Boyle v. Mowry, 122 Mass. 251. It is for the plaintiff to show, not merely that the place was unsafe, and that he was injured thereby, but that he himself was in the exercise of due care. His evidence fails to show this, if it appears that, knowing and appreciating the danger arising therefrom, he voluntarily exposes himself thereto. Business is sometimes carried on in buildings or places obviously unsafe, and if, with a knowledge that a business is thus conducted, the workman engages in it, he takes the risks which he must know are incident thereto. Huddleston v. Lowell Machine Shop, 106 Mass. 282. Where one capable of choosing and contracting for himself, with full notice of the risk he assumes, voluntarily uses a machine which, by reason of a known defect, exposes him to a particular and obvious danger, he is held to assume and take the risk of injury from that source. Pingree v. Leyland, 135 Mass. 398.
The evidence on the question of his due care comes from the plaintiff; it is not aided by the testimony of the other witnesses. From this it appears that he had been in the employ of the defendant for several years; that he was hired by the foreman to make size, and do whatever the foreman desired; that he was at the mill when the elevator was put in; that he used it at times; that he knew of the existence of the elevator well; that, on the morning of the accident he was ordered by the foreman to go down into the basement to help put on an engine belt, -- "to hurry" so that the foreman could start up; that he went down, the morning being very dark; that he examined the first four belts by feeling of them (not being able to see whether they were on or off) while passing under them; that he started along the line of the main shaft for the last belt, and, being nearer the elevator well than he thought, he walked into it; that he did not know whether there was or was not any fence to the well. He further stated, on cross-examination, that he was looking for the elevator well to shun it, and was thinking of it; that he knew it was there somewhere, but did not...
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