Mahoney v. Dore
| Decision Date | 24 February 1892 |
| Citation | 30 N.E. 366,155 Mass. 513 |
| Parties | MAHONEY v. DORE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Moulton, Loring & Loring, for plaintiff.
C.F Kittredge and G.C. Abbott, for defendant.
The plaintiff fell and was hurt on a flight of stairs consisting of 12 or 13 steps, leading from the kitchen of the defendant's boarding-house out of doors to the back yard. The stairway was covered and inclosed, except on the side towards the yard, and there was a sky-light over a portion of it, in which two or three panes of glass had for a long time been broken, so that rain, snow, and sleet came through and fell upon the stairs below. The evidence tended to show that at the time of the accident the weather was cold, and it was snowing, and that the stairs were slippery from snow and ice upon them. The plaintiff had occasion to use these stairs frequently as a servant of the defendant, and it was the duty of the defendant to keep them safe, so far as the exercise of reasonable care and diligence on her part would accomplish that result. It was a duty of which she could not relieve herself by delegating it to another. If she could properly intrust a part of the work to a mere servant, she, or somebody representing her, for whose conduct she would be responsible, must exercise reasonable care and supervision to see that the desired result was attained. In view of the fact that the glass over the stairs had been broken out for a long time, exposing the stairs to an accumulation of snow and ice, we are of opinion that it was a question for the jury whether she was negligent in allowing the stairs to become slippery; and that it cannot be said, as a matter of law, that she is relieved from liability, even if it was the duty of her servant, the engineer, to clean the stairs, and if his negligence contributed to the plaintiff's injury. Moynihan v Hills Co., 146 Mass. 586, 16 N.E. 574. There was evidence for the jury on the question whether the plaintiff was in the exercise of due care in trying to go down the stairs. She had occasion to go there, and, although it was dark and she knew there was snow and ice on the steps, it was the way provided for her use, she was very familiar with it, she had hold of the rail, and was trying to go safely, and it does not appear that she knew the stairs were so slippery that it would be careless to try to pass over them. The fact that she knew there was some danger in trying to go over them does not show, as a matter of law, that she was negligent. This part of the case was rightly submitted to the jury. Mahony v. Railroad Co., 104 Mass. 73; Fitzgerald v. Paper Co., 154 Mass. ---- 29 N.E. 464; Looney v. McLean, 129 Mass. 33; Watkins v. Goodall, 138 Mass. 533.
It is contended that the defendant is not liable because the plaintiff assumed the risk of injury, and that the doctrine volenti non fit injuria applies. See Mellor v Manufacturing Co., 150 Mass. 362, 23 N.E. 100; Lothrop v. Railroad Co. 150 Mass. 423, 23 N.E. 227; Myers v. Iron Co., 150 Mass. 125, 22 N.E. 631; Boyle v. Railroad Co., 151 Mass. 102, 23 N.E. 827. The cases in which this doctrine can be applied by the court, in ordering a verdict for the defendant on the undisputed facts, are usually those in which the plaintiff's assumption of the risk grows out of the contract implied in undertaking service in a dangerous business. Except in regard to the danger of injuries from the negligence of fellow-servants in certain cases, under St.1887, c. 270, and possibly some other dangers under the same statute, a servant impliedly agrees to assume the obvious risks of the business in which he engages, and his implied agreement, except as "it possibly may be affected by that statute," which we are not now considering, includes, not only the risks which are ordinarily incident to that kind of business, but also those which grow out of the peculiar way in which his employer is conducting it, so far as that way and those risks are obvious when he makes his contract. If he agrees to work in a business which he knows is carried on with machinery much more...
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