Collins v. Inhabitants of Greenfield

• Decision Date: 20 October 1898
• Parties: COLLINS v. INHABITANTS OF GREENFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 78

51 N.E. 454

COLLINS v. INHABITANTS OF GREENFIELD.

Supreme Judicial Court of Massachusetts, Franklin.

October 20, 1898

COUNSEL

Brooks & Hamilton, for plaintiff.

Dano Malone, for defendant.

OPINION

HOLMES J.

This is an action for injuries suffered by the plaintiff's intestate, Michael Collins, and causing his death, while in the defendant's employ. The case is here on exceptions to a refusal to direct a verdict for the defendant, and to one or two less important rulings. Collins was engaged in raking stones down a hillside upon land belonging to the defendant that they might be gathered and broken up in a stone crusher for use in macadamizing the defendant's streets. Above him was a large, overhanging rock, which looked safe from where he was at work, but which had a large crack behind it perhaps in consequence of some blasting done two days before. This rock fell a few minutes after Collins went to work, and crushed him. There was evidence that the superintendent, one Wait, put Collins to work where he was hurt; that Wait had been told that the rock which fell upon Collins could and ought to be barred down without further blasting; and that Wait had said that he would see to it.

The facts stated thus far are all that are material to the argument that Collins took the risk of the rock falling, which is one of the grounds on which the main exception is supported. The jury might have found that there was a special and concealed danger, of which the defendant had notice, but which Collins did not know, and had no chance to find out, and that, therefore, Collins was not negligent, or did not take the risk, whichever phrase be preferred. Burgess v. Ore Co., 165 Mass. 71, 42 N.E. 501; McKee v. Tourtellotte, 167 Mass. 69, 44 N.E. 1071.

Another ground on which the defendant claims immunity is that the work was under the charge of a public officer,--the superintendent of streets. Clark v. Easton, 146 Mass. 43, 14 N.E. 795; Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538; Prince v. City of Lynn, 149 Mass. 193, 21 N.E. 296; Hennessey v. City of New Bedford, 153 Mass. 260, 26 N.E. 999; McCann v. City of Waltham, 163 Mass. 344, 40 N.E. 20; Jensen v. City of Waltham, 166 Mass. 344, 44 N.E. 339; Taggart v. City of Fall River, 170 Mass. 325, 49 N.E. 622; Mahoney v. City of Boston (Mass.) 50 N.E. 939. We assume for the purposes of decision that the superintendent was appointed properly, and held his office lawfully, as well as de facto. Clark v. Easton, 146 Mass. 43, 45, 46, 14 N.E. 795. We assume, also, that there was no such control exercised by the selectmen as to make the town liable on the ground of their interference. But the jury were warranted in finding that the work which Collins was doing was in aid of macadamizing a particular street,--Federal street,--and this was work which primarily it was the duty of a street-railway company to do, under Pub.St. c. 113, § 32, at least for the most part, and so far as it went beyond the 18 inches on the sides of the track, according to the exceptions, was the duty of the same company, by the conditions of the location of its franchise. The town did the work in pursuance of an arrangement with the railway company by which the railway company was to pay, and did pay, it "the portion of the expense belonging to" the company. It would seem from this language quoted from the town vote, and from the report of the selectmen, that the company did not pay the whole bill; but we must assume from the statement in the exceptions previously quoted that the body of the work was what the company was bound to do. The town also sold a small amount of the crushed stone to private persons.

On these facts the jury were warranted in finding that the...