158 Mass. 135 (1893), O'maley v. South Boston Gaslight Co.

Citation:158 Mass. 135, 32 N.E. 1119
Opinion Judge:KNOWLTON, J.
Party Name:O'MALEY v. SOUTH BOSTON GASLIGHT CO.
Attorney:[32 N.E. 1120] J.P. Barlow, for plaintiff. C.P. Greenough and J.P. Parmenter, for defendant.
Case Date:January 17, 1893
Court:Supreme Judicial Court of Massachusetts

Page 135

158 Mass. 135 (1893)

32 N.E. 1119

O'MALEY

v.

SOUTH BOSTON GASLIGHT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 17, 1893

COUNSEL

[32 N.E. 1120] J.P. Barlow, for plaintiff.

C.P. Greenough and J.P. Parmenter, for defendant.

OPINION

KNOWLTON, J.

The plaintiff, while wheeling coal in a barrow on a run in one of the defendant's coal sheds, fell off and was injured. The action is brought under the employers' liability act, (St.1887, c. 270,) for an alleged defect in the ways, works, or machinery of the defendant; it being contended that the defendant was negligent in not providing guards on the runs to prevent such an accident. The plaintiff testified, and it was undisputed, that he has assisted in the same work, at various time, during the last 15 years, and that the coal shed and runs had all the time remained unaltered in construction. If the action were at common law, it would be too plain for argument that the plaintiff took the risk of such accidents as that which happened, and that the defendant is not liable.

Page 136

Fitzgerald v. Paper Co., 155 Mass. 155, 29 N.E. 464; Mahoney v. Dore, 155 Mass. ----, 30 N.E. 366. But it is contended that under the statute referred to the rule is different. It is well settled that, in the absence of a special contract affecting the rights and liabilities of the parties, the statute has taken away from defendants, in the cases mentioned in it, the defense that the injury was caused by the act of a fellow servant of the plaintiff. It is also established by an adjudication of this court, and by decisions under a similar statute in England, that it has not taken away the defense that the plaintiff, knowing and appreciating the danger, voluntarily assumed the risk of it. Mellor v. Manufacturing Co., 150 Mass. 362, 23 N.E. 100; Thomas v. Quartermaine, 18 Q.B.Div. 685; Yarmouth v. France, 19 Q.B.Div. 647; Thrussell v. Handyside, 20 Q.B.Div. 359; Walsh v. Whiteley, 21 Q.B.Div. 371; Smith v. Baker, (1891,) App.Cas. 325. Precisely how and when this defense can be availed of in cases where the ways, works, and machinery of the defendant are found to be defective has never been decided in this commonwealth. The nature of the defense was somewhat considered in Fitzgerald v. Paper Co., ubi supra, and Mahoney v. Dore, ubi supra, which were cases at common law; and it was held that, to be precluded from recovering on this ground, the plaintiff must not only know and appreciate the risk, but must assume it voluntarily. The doctrine of assumption of the risk of his employment by an employe has...

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