Davis v. Forbes
| Decision Date | 14 July 1898 |
| Citation | 171 Mass. 548,51 N.E. 20 |
| Parties | DAVIS v. FORBES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
P.J. Doherty and E.W. Hamlen, for plaintiff.
John Lowell and R.E. Forbes, for defendant.
It is difficult to understand why it was a great deal safer, as the plaintiff testified that it was, to put the buckle in the hole where the strap broke than it was to put it in the hole next to it. But, assuming that it was as the plaintiff said we think that the plaintiff took the risk of using the strap as he did in the condition in which it was. It does not appear what his age was, except that he was a minor. But he had been riding colts for two years before the accident, and though a boy, it is fair to assume that he had become experienced in matters pertaining to saddles and riding tackle. According to his testimony, he noticed a bad place in the strap, and told Mr. Abbott that it did not look right. Then, as he testified, "Mr. Abbott took it out of his hand, got hold of it, and pulled it; that he then put it on the floor, and pulled it up, and said it was strong enough to hold him, and that it had got to hold the plaintiff till he got a new one." The plaintiff further testified "that he believed the straps were strong enough after Mr. Abbott tested them and told him they were strong enough." There seems to have been what amounted to a common examination of the straps by the plaintiff and Abbott, and, though the plaintiff relied to some extent, as was natural, on Abbott's judgment, he appears to have been satisfied himself, from the test that was made in his presence, that the strap was suitable for use, as he proposed to use it, in the condition in which it was. No complaint was made that the test was not a reasonable one, and not such as the plaintiff's practical experience commended. There is nothing to show that Abbott's declaration "that it had got to hold the plaintiff until he got a new one," and "Here is a pair of old stirrup straps hanging in the case that you will have to use," coerced the plaintiff into using a strap which he did not think fit, or led him to assume a risk which he would not otherwise have taken. On the contrary, he testified, as already observed, "that be believed the straps were strong enough after Mr. Abbott tested them and told him they were strong enough," and evidently used them relying on what his own senses had told him concerning the test to which they were subjected, corroborated as it was by Abbott's statement that they were strong enough. See Williams v. Churchill, 137 Mass. 243. The fact that the strap afterwards broke under a strain to which it was subjected, has, of course, no tendency to show that the plaintiff was coerced into using it, or did not assume the risk.
The defendant was under no legal obligation to furnish the plaintiff with medical attendance, even if he had been liable for the injury, and the ruling that the plaintiff could not recover under the second count was, therefore, correct. The case of a seaman injured on shipboard is different.
In the view which we have taken of the case it is unnecessary to consider whether there was any evidence of negligence on the part of the defendant. Exceptions overruled.
Because I consider the decision in this case wrong, as an invasion of the province of the jury, and because the opinion seems to me misleading in regard to the principles applicable to cases of this kind, I feel constrained to express my dissent. The fundamental questions upon which the rights of the parties depend in actions for negligence are whether the defendant was negligent, and whether the plaintiff was in the exercise of due care. In my opinion, the question whether the plaintiff assumed the risk is only important as it bears upon one of these two questions. It does not affect the fundamental propositions on which the law of negligence rests. In its nature it is rather a collateral inquiry, the answer to which often easily decides the case in accordance with these fundamental propositions, without the necessity of considering either of them by itself. I do not remember ever having read or heard any exposition or argument to show that the doctrine of the assumption of the risk by a plaintiff has changed the rule of law that one who is himself without fault, and in the exercise of due care, and who suffers from the negligence of another, may recover the amount of his damages. The maxim, "Volenti non fit injuria," is applicable to actions for negligence, as it is to other cases. The doctrine of the assumption of the risk is merely a formal statement of this maxim in its application to concrete cases. If a plaintiff voluntarily assumes a risk, and afterwards sues for an injury that he has suffered which was within the risk, he cannot recover, because he encounters one or the other of two facts, either of which is fatal to his claim. In such a case it would appear in the last analysis, if the truth were ascertained, either that the plaintiff was negligent, or that the defendant was not negligent. In every case where the evidence warrants it, a defendant has a right to have this test applied. Sometimes each of the fundamental questions in the law of negligence would be difficult to answer upon the evidence, were it not easy to determine that the plaintiff voluntarily assumed the risk. In such a case the defendant prevails without a separate decision of either of the two questions whether he was negligent or whether the plaintiff was in the exercise of due care. Such a result, considered in reference to the law of negligence, is a decision that the plaintiff has failed to establish one or the other of the two propositions which must be established in every suit for negligence before there can be a recovery. The cases to which these principles are applied may be divided into two classes. The first is where the plaintiff, for a valuable consideration, voluntarily assumes the risk by virtue of a contract which expressly or impliedly includes the assumption of it. In ordinary cases, when one contracts to enter a business as employé he voluntarily agrees, for the wages to be paid him, to assume all the open and obvious risks of the business, "including the manifest dangers attendant upon the use of the ways, works, and machinery of a permanent character that are plainly intended to be retained as a part of the plant to which the contract for service relates." This may be called a contractual assumption of risk. In regard to the dangers covered by it, the employer owes the employé no duty, and he cannot be held guilty of negligence. The rights of the parties depend, not necessarily upon that which the employé in fact understands and appreciates, but upon that which he ought to understand and appreciate in making such a contract for service, and upon that which the employer has a right to suppose that he understands and appreciates. Murch v. Thomas Wilson's Sons & Co., 168 Mass. 408, 47 N.E. 111; Ladd v. Railroad Co., 119 Mass. 412; Lovejoy v. Railroad Corp., 125 Mass. 79; Coombs v. Railroad Co., 156 Mass. 200, 30 N.E. 1140; O'Maley v. Gaslight Co., 158 Mass. 135, 32 N.E. 1119; Fisk v. Railroad Co., 158 Mass. 238, 33 N.E. 510; Goodridge v. Mills Co., 160 Mass. 234, 35 N.E. 484; Rooney v. Cordage Co., 161 Mass. 153, 36 N.E. 789; Feely v. Cordage Co., 161 Mass. 426, 37 N.E. 368; Goodes v. Railroad Co., 162 Mass. 287, 38 N.E. 500; Austin v. Railroad Co., 164 Mass. 282, 41 N.E. 288; Content v. Railroad Co., 165 Mass. 267, 43 N.E. 94; Sweeney v. Envelope Co., 101 N.Y. 520, 5 N.E. 358; Appel v. Railway, 111 N.Y. 550, 19 N.E. 93; Hayden v. Manufacturing Co., 29 Conn. 548; Tuttle v. Railway, 122 U.S. 189, 7 Sup.Ct. 1166. The second class of cases is where an employé has suffered from the negligent conduct of an employer in reference to some matter not included in his assumption of risks by virtue of the contract under which he is working at the time of the injury. As to these cases different considerations apply. The employer is under an implied contract or duty to provide safe and proper machinery, tools, and appliances for the employé. There is often evidence on which it is contended that he is guilty of negligence in this particular. In dealing with such a case, upon the question whether the plaintiff is precluded from recovery on the ground that he assumed the risk, it must be assumed that the jury properly might find the defendant guilty of negligence. The question is to be determined in reference to the possibility of a finding either way on that point. If, looking to the conduct of the defendant alone, the finding ought to be against him, on what ground can the plaintiff be cut off from his right to damages? Under the law of negligence it is only on the ground that he is himself in fault through failure to exercise proper care or otherwise. If the facts relied on to establish this defense are merely that he continued to work, knowing of the defect which afterwards caused his injury, and if the defect is so slight, viewed in reference to the defendant's duty to provide for his safety, that it is just a little outside of the line which separates due care on the part of the defendant from negligence, the question arises whether there was such a voluntary assumption of the risk on the plaintiff's part as to put him in the same category with the defendant in reference to the alleged negligence. It is the law of Massachusetts that if he knew and fully appreciated the risk, and...
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