Miner v. Connecticut River R. Co.

• Decision Date: 02 March 1891
• Citation: 153 Mass. 398,26 N.E. 994
• Parties: MINER v. CONNECTICUT RIVER R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 398

26 N.E. 994

MINER v. CONNECTICUT RIVER R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

March 2, 1891

COUNSEL

Robinson & Robinson, for plaintiff.

Wells McClench & Barnes, for defendant.

OPINION

C ALLEN, J.

Under the instructions which were given to the jury they must have found that Gourley was rightfully in the defendant's freight-yard, upon the implied invitation of the defendant; that the defendant was negligent in failing to provide a suitable place for the delivery of freight, or in failing to manage its business there properly; and that Gourley was in the exercise of reasonable care in going there, and what he did while there. These questions were properly submitted to the jury. The principal point raised by the bill of exceptions is whether the defendant was entitled to have an instruction given to the jury, in substance that if Gourley knew the situation and the danger, and voluntarily assumed the risk, then the plaintiff could not recover. There can be no doubt that there are cases where the principle which is often expressed by the maxim volenti non fit injuria will have the effect to debar one from a remedy which might otherwise be open to him. This principle was recently applied by this court, in a case where the plaintiff, who was employed in a mill, volunteered to make certain repairs of machinery, which it was no part of his regular duty to make, understanding perfectly what the defect was, and what might happen from it, and was hurt. It was held that he took the risk. Mellor v. Manufacturing Co., 150 Mass. 362, 23 N.E. 100. In the present case there was no relation of master and servant existing between the defendant and Gourley. Gourley was employed by the plaintiff's husband to take the plaintiff's team and go to Springfield for a load of grain, and was directed by the vendor to go to the defendant's freight-yard, and was told the number of the car containing the grain. While he was in the freight-yard the accident happened by which the plaintiff's horse was killed. There was evidence tending to show that Gourley knew and appreciated the danger before entering the freight-yard, and took the horse by the head, and led him in. The testimony of Mesick on cross-examination tended to show that Gourley might have had the car moved to another place before being unloaded. Independently of any relation of master and servant there may be a voluntary assumption of the risk of a known danger, which will debar one from recovering compensation in case of injury to person or property therefrom, even though he was in the exercise of due care. In other words, it may be consistent with due care to incur a known danger voluntarily and deliberately; and this may be so when the danger arises from the known or apprehended neglect or carelessness of others. Ordinarily, in actions to recover damages for injuries to person or property, an instruction as to the effect of contributory negligence on the part of the plaintiff will cover all that need be said to the jury upon this branch of the case. But the principle that one may be debarred from a recovery when he voluntarily assumes the risk is not identical with the principle on which the doctrine of contributory negligence rests, and in proper cases this ought to be explained to the jury. One may (with his eyes open) undertake to do a thing which he knows is attended with more or less...