Murphy v. Greeley

• Decision Date: 29 February 1888
• Citation: 146 Mass. 196,15 N.E. 654
• Parties: MURPHY v. GREELEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 196

15 N.E. 654

MURPHY v. GREELEY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1888

COUNSEL

Gaston & Whitney, for plaintiff.

If it was intended to prove a usage by which the plaintiff's intestate was bound, there was no evidence that the plaintiff's intestate had knowledge of it; and even if such knowledge could be inferred from the fact that he was a carpenter, the usage would have been bad as relieving builders from the necessity of taking proper and reasonable precaution for the safety of their employes. Miller v Pendleton, 8 Gray, 547. Neither was the evidence admissible as bearing upon the question of whether the defendant was guilty of negligence. The necessity for a guard or light at any particular opening depends upon the particular nature of the surroundings and the likelihood of an accident happening there. The practice of builders upon other buildings, and under other circumstances, would not afford any criterion for determining whether the defendant had exercised due care in the present case. Bailey v Railroad Co., 107 Mass. 496. The ruling of the judge that upon the evidence the plaintiff could not recover, was erroneous. There was ample evidence of the defendant's negligence. The question of the due care of the plaintiff depends upon whether he had reasonable cause to believe that he could pass in safety, and whether, in fact, he used reasonable care in passing. Thomas v. Telegraph Co., 100 Mass. 156; Mahoney v. Railroad Co., 104 Mass. 73; Lawless v. Railroad Co., 136 Mass. 1; Lyman v. Hampshire, 140 Mass. 311, 3 N.E. 211. And if a servant in the course of his employment is compelled to go into a dangerous place, the question of whether or not he exercised due care in so doing is not to be judged by the same standard as in the case of a stranger. Snow v. Railroad Co., 8 Allen, 441; Goodfellow v. Railroad Co., 106 Mass. 461; Lawless v. Railroad Co., supra. See Lyman v. Hampshire, 140 Mass. 311, 3 N.E. 211; Mahoney v. Railroad Co., supra; Lawless v. Railroad Co., supra. Upon the whole evidence, and in view of the fact that the plaintiff's intestate had no other way of leaving his work, the jury might well have found that he exercised the same degree of care that an ordinarily prudent man would have exercised under the same circumstances. Furthermore, "risks incidental to a business" are those risks which are incidental to a business when conducted with a due regard to the safety of employes. It is the duty of an employer to use due care about the condition of his machinery and his premises, and an employe has a right to assume that he will perform his duty in that respect; and consequently does not assume by reason of his contract of service risks arising from defective machinery or dangerous premises. See Snow v. Railroad Co., 8 Allen, 441; Lawless v. Railroad Co., 136 Mass. 1. The case of Taylor v. Manufacturing Co., 3 N.E.Rep. 21, is entirely different from the present case, because there the plaintiff knew of the existence of the hole through which he fell. The facts in the present case bring it precisely within the decision in Huddleston v. Machine Shop, 106 Mass. 282. See, also, Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117.

Samuel Hoar, for defendant.

The evidence that it was not the custom, in erecting buildings, to protect, guard, or light up holes and openings in the floors, nor to light up passages in such buildings, while in the process of construction, and that the usage was to leave such holes and openings unguarded, is material; and it is proper for this court to consider this evidence as bearing on the question of the defendant's negligence, of the plaintiff's exercise of due care, and of the risk which the plaintiff assumed in entering into his employment. Lane v. Railroad Co., 112 Mass. 455; Westport v. Commissioners of Bristol, 9 Allen, 203. If we should assume, therefore, that the relation of master and servant existed between the defendant and the plaintiff, and that the plaintiff was in the exercise of due care at the time of the accident, it is submitted that the plaintiff cannot recover, and that the accident was one of the ordinary risks which he assumed in entering upon the employment. Taylor v. Manufacturing Co., 140 Mass. 150, 3 N.E. 21, and 143 Mass. 470, 10 N.E. 308; Kenney v. Shaw, 133 Mass. 501; Yeaton v. Railroad Co., 135 Mass. 418; Anthony v. Leeret, 105 N.Y. 591, 12 N.E. 561; It is submitted, however, that the evidence does not show that plaintiff was the servant of the defendant,--it was rather the relation of contractor and contractee,--and that the defendant had no such direct and immediate control over the plaintiff as to render him liable as the master to his servant. It is submitted, therefore, that, if there is any negligence, it is not that of the defendant, and that the plaintiff was not in the exercise of due care.

OPINION

KNOWLTON J.

To determine whether the defendant neglected his duty towards the plaintiff's intestate, we must first inquire what were the relations...