Anderson v. Clark

• Decision Date: 08 January 1892
• Citation: 155 Mass. 368,29 N.E. 589
• Parties: ANDERSON v. CLARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 368

29 N.E. 589

ANDERSON v. CLARK.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1892

COUNSEL

J.M. Browne and A.H. Russell, for plaintiff.

Bartlett Gage & Anderson, for defendant.

OPINION

LATHROP J.

There was evidence tending to show that the plaintiff, a seaman on a fishing schooner owned by the defendant was injured under the following circumstances: While the vessel was at anchor, in a heavy sea, it became necessary to pay out the cable, and, while this was being done, the cable slipped between the end of the windlass and the windlass bitts, and became fast. To ease the strain on the cable, the master took a rope, called the "foreboom guy," which had an iron hook on one end, made a hitch with one end of the rope around the cable about 12 feet from the windlass and passed the other end under and around the windlass head. Thereupon the iron hook straightened out, struck the plaintiff in his face, and severely injured him. The cable was 81/2 inches in circumference, and the rope was about 3 inches in circumference. The second count of the declaration alleges that the defendant negligently failed to provide proper ropes, and a suitable windlass and gearing and machinery on the vessel, to be used for the purpose of managing and securing the anchor and cable attached thereto that, by reason of the defective windlass and machinery, the cable slipped from the windlass, and became fast; and that the plaintiff was injured by being struck in the face by the hook attached to the foreboom guy, while he assisted in releasing the cable. On this evidence the jury were instructed that this count raised the question of the owner's negligence in failing to provide proper ropes and a suitable windlass and gearing and machinery for the purpose of managing and securing the anchor and the cable attached thereto; that it was not a question of due care on the part of the plaintiff, but was a question of contract; that, if he entered that employment, he took the risks of the business that, if he knew that the windlass was so constructed "that the cable would go down there, knew all about it, and knew all about the ropes that were provided, then he took the risks of the business in that way;" that he could not claim of the defendant damages by reason of those defects in the appliances which he knew all about. The jury were also instructed that it was for them to determine what knowledge the plaintiff had. The plaintiff took a general exception to this part of the charge; but did not ask any further instructions, or point out any omission in the instruction given. The plaintiff now contends that, under the instructions given, the jury were justified in finding that mere knowledge of a defect, but not of a danger, would be sufficient to bar the action; and that this was error. The general rule undoubtedly is that a person cannot be said to take a risk unless he knows not only the condition of things, but also that danger exists in such condition. Coombs v. New Bedford Cordage Co., 102 Mass. 572, 585, 596; Huddleston v. Lowell Machine Shop, 106 Mass. 282; O'Connor v. Adams, 120 Mass. 427; Ryan v. Tarbox, 135 Mass. 207; Lawless v. Railroad, 136 Mass. 1; Mellor v. Manufacturing Co., 150 Mass. 362, 23 N.E. 100. If, however, the danger is obvious, knowledge of the condition of things need only be shown. Sullivan v. Manufacturing Co., 113 Mass. 396; Pingree v. Leyland, 135 Mass. 398; Moulton v. Gage, 138 Mass. 390; Leary v. Railroad, 139 Mass. 580, 2 N.E. 115; Taylor v. Manufacturing Co., 140 Mass. 150, 3 N.E. 21; Linch v. Manufacturing Co., 143 Mass. 206, 9 N.E. 728; Ciriack v. Woolen Co., 146 Mass. 182, 15 N.E. 579; Goodnow v. Emery Mills, 146 Mass. 261, 15 N.E. 576; Foley v. Machine Works, 149 Mass. 294, 21 N.E. 304; Boyle v....