Lewis v. New York & N.E.R. Co.

• Citation: 153 Mass. 73,26 N.E. 431
• Parties: LEWIS v. NEW YORK & N.E.R. CO.
• Decision Date: 09 January 1891
• Court: United States State Supreme Judicial Court of Massachusetts

153 Mass. 73

26 N.E. 431

LEWIS v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 9, 1891

Report from superior court, Suffolk county; ALBERT MASON, Judge.

HEADNOTES

Labor and Employment 2964

231H ----

231HXVII Employer's Liability to Employees

231HXVII(E) Risks Assumed by Employee

231Hk2964 Notice or Complaint to Employer.

(Formerly 148Ak132 Employers' Liability, 255k220(6) Master and Servant)

Plaintiff while running along the pier in the performance of his duty as superintendent of defendant's drawbridge, was injured by breaking through a board which was fair on top, but had rotted away underneath. He had occupied the position for three or four years, and was well aware of the general defective condition of the pier. A few days before he called the proper officer's attention to it, saying that somebody would get hurt, unless it was repaired, but did not complain on his own account, or offer to leave. He was told that it would soon be fixed. Held, that he assumed the risks of his employment.

COUNSEL

Allen Long & Hemenway, for plaintiff.

C.A Prince and R.D. Weston-Smith, for defendant.

OPINION

MORTON J.

The plaintiff contends that there was evidence which would have justified the jury in finding that the rotten and defective condition of the pier which caused the accident was due to the negligence of the defendant, and in this we think he is right. He also contends that there was evidence to go to the jury that he was himself in the exercise of due care, and continued in defendant's service relying upon assurances given by one of its general superintendents that the pier would be repaired. In this, however, we cannot agree with him. The plaintiff was superintendent of defendant's draw-bridge over Fort Point channel, in Boston. He had held that position between three and four years prior to the accident. Connected with and forming a part of the draw-bridge was a pier which was planked over. While running quickly along this pier in the discharge of his duty, for the purpose of catching a line from a vessel that was going through the draw, plaintiff broke through a rotten place in the planking, and was injured in one knee so as to be permanently disabled. He testified that, though there were some holes covered up with plank, the surface of the pier "looked as fair" as the board in front of the witness stand, "but it was decayed, it must have been dreadfully decayed underneath, and a great many places were the same. Almost anywhere, you see, it would look very fair and you would go down through, if you didn't look out." He also testified that a few days before the accident he had a conversation with Mr. Bent, one of the defendant's general superintendents, and told him "the pier was in very bad condition indeed; that strangers would be apt to fall through there. Not knowing where to go, they will be apt to step on some place, and get hurt, and he didn't want them to get hurt. I told him it was in very bad condition, and ought to be seen to before people got hurt. Says I, 'There is a number that have fell through here, and somebody is going to get badly hurt.' " And in answer to the question whether he had complained to Mr. Bent before this of its dangerous condition as it affected himself, plaintiff said: "Well, I complained of it a number of times to him. I told him, 'Somebody is going to get hurt yet; there is a number fell through;' and the day before I got hurt there was one of the carpenters *** fell through the corner of the house that we lived in chock up to his hip." Other witnesses called by the plaintiff described the appearance of the pier underneath as badly decayed; one saying that the general appearance of the pier was rotten, and another that there was not much difference between the two surfaces of the planking. These and other observations made by the witnesses were not communicated to the plaintiff, and it did not appear that he had examined the pier underneath. But he had been employed there between two and three years, and it is apparent from his own testimony that he was well acquainted with the rotten and dangerous condition of the pier, and realized that he might at any time break through. The danger was to him a constant and obvious one. He chose, notwithstanding this, to continue in his employment, and he must be...