Burgess v. Davis Sulphur Ore Co.
| Decision Date | 01 January 1896 |
| Citation | 42 N.E. 501,165 Mass. 71 |
| Parties | BURGESS v. DAVIS SULPHUR ORE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.B. Carroll and W.H. McClintock, for plaintiff.
Frederick L. Greene, for defendant.
While the plaintiff was working at a place where he had been directed by the defendant to work, a piece of overhanging rock about five feet long and three feet wide fell upon him and injured him. So far as the defendant could ascertain, it was its duty to know tat, by the exercise of reasonable diligence, the place was reasonably safe, before setting the plaintiff at work there. There was evidence that the defendant's superintendent, for whose negligence it is agreed that the defendant is liable, knew of this loose stone before he told the plaintiff to work there, and that he made an unsuccessful attempt to dislodge it. The jury might well find that he was negligent, either in not bringing it down or in failing to discover that it was so likely to fall as to make other measures necessary for the protection of the workmen before resuming work on the benches below. Although some of the testimony tended to show that the plaintiff was negligent, there was other evidence from which the jury might find that he was in the exercise of due care. He testified that the superintendent told him where to go to work, and in reply to the question whether the ground--that is, the wall of rock above--was all right, said: He also testified that there was smoke there from a blast, so that he and his companions could hardly see their work, which was drilling. It appeared that the only light which they had was from oil lamps carried in their hats. It was the duty of the superintendent, and not of the plaintiff, to see that the mine was kept safe for the workmen employed there, and the plaintiff might well trust somewhat to him. The assurance, which the plaintiff testified was given him by the superintendent, showed that the condition of the place in regard to safety had been brought to the superintendent's attention. We are of opinion that it was a question of fact for the jury whether the plaintiff was reasonably careful in working where he did at the time of the accident. It is argued that he should be held, as matter of law, to have assumed the risk of such an accident as this. In regard to dangers arising from an employer's negligence, the doctrine that a voluntary assumption of the risk precludes recovery is of practical application only when the risk is understood and appreciated by the employé, and is not assumed under such constraint of any kind as deprives the act of its voluntary character. Fitzgerald v. Paper Co., 155 Mass. 155, 29 N.E. 464, and cases there cited; Mahoney v. Dore, 155 Mass. 513, 30 N.E. 366; Hickey v. City of Waltham, 159 Mass. 460, 34 N.E. 681. In addition to the ruling that the plaintiff cannot recover unless it appears that he was in the exercise of due care, and that the defendant was negligent, the defendant, in a case of this kind, has the right to an application of the doctrine that if the plaintiff understood and appreciated the risk, and voluntarily assumed it, he is without remedy. Inasmuch as the essence of the negligence is a failure to take proper precautions against danger and the risk of injury, it follows that if the defendant is negligent in this particular, the plaintiff, who voluntarily assumes the risk with a full...
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