Coan v. City of Marlborough

Decision Date23 July 1895
PartiesCOAN v. CITY OF MARLBOROUGH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Allin &amp Mayberry, for plaintiff.

J Lowell, Jr., and S.H. Smith, for defendant.

OPINION

BARKER J.

1. The defendant concedes that there was evidence that the sides of the trench were not sufficiently shored.

2. Whether the plaintiff knew and appreciated the danger from the lack of proper shoring was a question of fact. He knew that the trench was not close-sheathed, and saw what portions of its sides were not covered, knew the nature of the soil and the depth of the trench, and that blasting was done to remove rock at the bottom, and that small quantities of earth frequently fell from the sides, and he had worked much in such trenches. These things make in favor of the contention that he knew and appreciated the danger, and assumed the risk of injury; but they are not conclusive, as there was evidence of other facts proper for the consideration of the jury. The plaintiff was a common laborer, working where he was told to work, and having no discretion as to where he should stand. He had a right to rely upon the inspection of the shoring and of the condition of the sides of the trench, made by his superiors after each blast before allowing the workmen to again enter the trench, and he was not charged with the decision of the question whether there was danger. Neither the fact that inconsiderable quantities of earth were frequently falling, nor his experience in trenches can be said to show, as matter of law, that he appreciated the danger. See Breen v. Field, 157 Mass. 277, 278, 31 N.E. 1075; Id., 159 Mass. 582, 35 N.E. 95; Lynch v. Allyn, 160 Mass. 248, 254, 35 N.E. 550; Hennessy v. City of Boston, 161 Mass. 502, 37 N.E. 668.

3. The defendant also contends that a verdict should have been ordered in its favor because the construction of the sewer was a public duty, undertaken for the public good and not for any pecuniary reward, and argues that the duty of maintaining a public sewer is of far more serious importance to the general public than the maintenance of a fire department, a workhouse, or a public hospital, in respect to each of which undertakings the doctrine for which it contends has been held to prevent a recovery, and in the case of the fire department even as to a laborer to whom the city, by contracting to hire him, had a duty, springing from an implied term of the contract of hiring, to use due care to furnish a safe place in which to do his work. See Pettingell v. City of Chelsea, 161 Mass. 368, 37 N.E. 380; Curran v. City of Boston, 151 Mass. 505, 24 N.E. 781; Benton v. City Hospital, 140 Mass. 13, 1 N.E. 836. It has long been settled by our decisions that,...

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32 cases
  • Moynihan v. Tood
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 20 Mayo 1905
    ...be liable for negligent acts of misfeasance done by its servants in the construction or repair of a common sewer. Coan v. Marlborough, 164 Mass. 206-208, 41 N. E. 238;Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289;Lynch v. Springfield, 174 Mass. 430, 54 N. E. 871;Norton v. New Bedford, 16......
  • Moynihan v. Todd
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 20 Mayo 1905
    ...be liable for negligent acts of misfeasance done by its servants in the construction or repair of a common sewer. Coan v. Marlborough, 164 Mass. 206-208, 41 N.E. 238; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Lynch v. Springfield, 174 Mass. 430, 54 N.E. 871; Norton v. New Bedford, 1......
  • Lockwood v. City of Dover
    • United States
    • Supreme Court of New Hampshire
    • 7 Marzo 1905
    ...208; Murphy v. Lowell, 124 Mass. 564; Bates v. Westborough, 151 Mass. 174, 182, 184, 23 N. E. 1070, 7 L. R. A. 156; Coan v. Marlborough, 164 Mass. 206, 208, 41 N. E. 238, and cases there cited; Will. Mun. Liab. §§ 156, 157, In Roberts v. Dover, supra, this court said: "In Rowe v. Portsmouth......
  • Galluzzi v. City of Beverly
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 27 Mayo 1941
    ...13, 15, 16, 17;Murphy v. Lowell, 124 Mass. 564;Bates v. Westborough, 151 Mass. 174, 184, 23 N.E. 1070,7 L.R.A. 156;Coan v. Marlborough, 164 Mass. 206, 41 N.E. 238;Norton v. New Bedford, 166 Mass. 48, 51, 43 N.E. 1034;Markiewicus v. Methuen, 300 Mass. 560, 565, 16 N.E.2d 32. See Dickinson v.......
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