Taylor v. Carew Manuf'g Co.

• Decision Date: 23 February 1887
• Citation: 10 N.E. 308,143 Mass. 470
• Parties: TAYLOR, Adm'x, v. CAREW MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 470

10 N.E. 308

TAYLOR, Adm'x,

v.CAREW MANUF'G CO.

Supreme Judicial Court of Massachusetts, Hampshire.

February 23, 1887.

Tort to recover for personal injuries received while in defendant's employ. At the trial in the superior court, before BARKER, J., the court ruled that the plaintiff could not recover, upon the ground that the plaintiff's intestate was not in the exercise of due care; and directed a verdict for defendant, which was returned, and the plaintiff alleged exceptions. The facts are stated in the opinion.George M. Stearns and W.H. Brooks, for plaintiff.

The court below ruled that plaintiff's intestate could not recover because “he was not in the exercise of due care.” No other question arises in this case than the correctness of that ruling. The plaintiff claims that her right of action under this count is given by statute; that the rule of care is the same as that required in other actions the right to which is given by statute; that the rule adopted in the former decision of this case, under the first count, compelling the plaintiff's intestate to assume all risks he ought to know and appreciate, is peculiar to the class of cases that arise out of the relation of master and servant at common law; and that no such rule pertains to actions the right to which arises from statute. Under the second count, and in all cases under statutes like this, previous knowledge of the defect and danger, and appreciation of them, and attempts to avoid or pass by or over such defects, knowing and thinking of the same, are not conclusive of want of due care. Mahoney v. Metropolitan R.R., 104 Mass. 73;Dewire v. Bailey, 131 Mass. 171;Snow v. Provincetown, 120 Mass. 580;Gilbert v. Boston, 139 Mass. 313. That he proceeded in the dark is not conclusive against him. Fox v. Sackett, 10 Allen, 535. Under the dog law, the same rule prevails as to care. Munn v. Reed, 4 Allen, 431. The man being on foot, and master of his acts, even if he did not use all his senses, such as feeling with his feet, is not to be conclusively held negligent. Williams v. Grealy, 112 Mass. 79;Shapleigh v. Wyman, 134 Mass. 118;Warren v. Fitchburg R.R., 8 Allen, 227;Chaffee v. Boston & L.R.R., 104 Mass. 108;Bowser v. Wellington, 126 Mass. 391. The blind and the intoxicated may travel, and not be concluded from recovery thereby. Alger v. Lowell, 3 Allen, 402;Maguire v. Middlesex R. Co., 115 Mass. 239. A case is not to be taken from the jury “unless the act is seen to be such that the common judgment of men immediately pronounces it to be negligent. McDonough v. Metropolitan R.R., 137 Mass. 210. In all cases where there is a complication of circumstances, reasons to be weighed, motives and causes to be considered, the question of care is for the jury. McDonough v. Metropolitan R.R., supra; Chaffee v. Boston & L.R.R., supra; Gaynor v. Old C.R.R., 100 Mass. 208;Copley v. New Haven & N.R.R., 136 Mass. 6;Lawless v. Connecticut R.R., 136 Mass. 1.

In this case, circumstances affecting the conduct of plaintiff's intestate existed which have been held sufficient to entitle her to a jury upon the question of care. He had a right to rely upon defendant's compliance with the statute requiring safeguards and protection at the well-hole. The only authority relied upon by the defendant in the court below was the sentence torn from the context at the top of page 153, in the opinion of the court in this case.

E.H. Chapin and D.W. Bond, for defendant.

The defendant claims (1) that the ruling of this court upon the evidence of the first trial is equally applicable to the same evidence under the count under the statute; and (2) that the additional evidence offered by the plaintiff does not materially change the evidence upon either of the grounds upon which the new trial was granted. Pub.St. c. 52, §§ 1, 18; Thompson v. Bridgewater, 7 Pick. 187;Adams v. Carlisle, 21 Pick. 146; Pub.St. c. 102, § 93; Munn v. Reed, 4 Allen, 431;Plumley v. Birge, 124 Mass. 57;Denison v. Lincoln, 131 Mass. 236. The additional evidence offered by the plaintiff does not materially change the case from that presented by the evidence of the first trial. See Seymour v. Maddox, 16 Q.B. 326; CHAPMAN, C.J., in Huddleston v. Lowell Machine-shop, 106 Mass. 282, 286;Kelley v. Silver Spring Co., 12 R.I. 112, 115;Murphy v. Deane, 101 Mass. 455, 463; Acts 1877, c. 214, § 2; Buxt.Ev. 15.

GARDNER, J.

The first count of plaintiff's declaration alleges negligence on the part of the defendant corporation in failing to guard or fence an elevator well in the basement of its mill, where the plaintiff's intestate was sent to assist in putting on a belt, and that, while using due care, he fell therein, and was injured. The amended count is under Pub.St. c. 104, § 14, for failure to furnish safeguards to an elevator and well-hole; and alleges that, by reason of the violations by the defendant of the provisions of the statute, the plaintiff's intestate, while in the proper discharge of his duty, fell into the well-hole, and was injured. At the first trial, the court ruled that the amended count was not supported by the evidence. The plaintiff recovered a verdict upon the first count, and the defendant came to this court upon exceptions. The second trial was upon the amended declaration. Upon the evidence offered, the court ruled that the plaintiff could not recover, upon the ground that the plaintiff's intestate at the time he received the injury was not in the exercise of due care. The defendants now contend that the determination by this court of the questions raised in Taylor v. Carew Manuf'g Co., 140 Mass. 150, 3 N.E.Rep. 21, effectually disposes of all the matters of law presented by this bill of exceptions.

1. Where the statute does not otherwise provide, as in Com. v. Boston & L.R.R., 134 Mass. 211, the rule requiring the plaintiff, in an action for negligence, to show that, at the time of the injury complained of, he was in the exercise of due care, is the same in actions brought under a statute and at common law. The doctrine of contributory negligence governs both classes of actions. Thompson v. Bridgewater, 7 Pick. 187;Adams v. Carlisle, 21 Pick. 146;Munn v. Reed, 4 Allen, 431;Plumley v. Birge, 124 Mass. 57;Denison v. Lincoln, 131 Mass. 236.

2. The plaintiff's counsel in his argument assumes that the decision of this court in the former case, under the first count, “was that, in view of the relation of master and servant,...