O'maley v. South Boston Gaslight Co.

• Decision Date: 17 January 1893
• Citation: 158 Mass. 135,32 N.E. 1119
• Parties: O'MALEY v. SOUTH BOSTON GASLIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 135

32 N.E. 1119

O'MALEY v. SOUTH BOSTON GASLIGHT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 17, 1893

COUNSEL

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. 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 usually been considered from the point of view of a contract, express or implied, but, as applied to actions of tort for negligence against an employer, it leads up to the broader principle expressed by the maxim, volenti fit non injuria. One who, knowing and appreciating a danger, voluntarily assumes the risk of it, has no just cause of complaint against another, who is primarily responsible for the existence of the danger. As between the two, his voluntary assumption of the risk absolves the other from any particular duty to him in that respect, and leaves each to take such chances as exist in the situation, without a right to claim anything from the other. In such a case there is no actionable negligence on the part of him who is primarily responsible for the danger. If there is a failure to do his duty according to a high standard of ethics, there is, as between the parties, no neglect of legal duty. That part of the statute under which this action is brought gives a remedy only for defects "which arose from, or had not been discovered or remedied owing to, the negligence of the employer, or of any person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, and machinery are in proper condition." A proceeding under it necessarily involves the question whether there was negligence in not having the ways, works, and machinery in better condition. The negligence referred to is the neglect of a duty owed to the plaintiff, and not of a general duty, which, by reason of the relations of the parties, does not extend to him. The statute does not attempt to take away the right of the parties to make such contracts as they choose, which will establish their respective rights and duties. In the numerous enterprises of every kind which involve the employment of labor, there is necessarily almost every degree of danger to employes. Improvements are constantly being made in the methods of doing business, and in ways, works, and machinery used. The adoption of the latest and best machinery would often involve the displacement and loss of that which has been but little used, and which was the best obtainable when bought. It would be unreasonable to attempt to require every one hiring laborers to have the safest place and the best machinery possible for carrying on its business. It would be an unwarranted construction of the statute, which would tend to defeat its object, to hold that laborers are no longer permitted to contract to take the risk of working where there are peculiar dangers from the arrangement of the place, and from the kind or quality of the machinery used. Nothing but the plainest expression of intention on the part of the legislature...