Goodenow v. Walpole Emery Mills

• Decision Date: 02 March 1888
• Citation: 15 N.E. 576,146 Mass. 261
• Parties: GOODENOW v. WALPOLE EMERY MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 261

15 N.E. 576

GOODENOW v. WALPOLE EMERY MILLS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1888

COUNSEL

Henry M Bragg, for plaintiff.

Upon the facts, the verdict can be sustained only upon the ground that they show conclusively, either that the defendant was not negligent, or that the plaintiff was negligent. It is a settled rule of law that wherever the facts are in dispute or wherever the alleged facts are the subject of inference from other facts and circumstances, or wherever the question of negligence rests in the consideration of the evidence presented, or as an inference from such evidence, it is the exclusive province of the jury to consider the testimony and ascertain the facts, under proper instructions from the court. Com. v. Railroad Co., 10 Allen, 192; Snow v. Railroad Co., 8 Allen, 448; Gaynor v. Railroad Co., 100 Mass. 208, and cases cited; Ryan v Tarbox, 135 Mass. 207; Ross v. Railroad Co., 6 Allen, 92; Reed v. Deerfield, 8 Allen, 524; Chaffee v. Railroad Co., 104 Mass. 108; Williams v. Grealy, 112 Mass. 79; Beach, Contrib.Neg. 283, 451; McKeever v. Railroad Co., 59 Cal. 294, 300; Iron Co. v. Scally, 27 Md. 589; Flori v. City of St Louis, 3 Mo.App. 231; Railroad Co. v. Stout, 17 Wall. 657. The defendant was culpably negligent. An employer is under an implied contract with those he employs, to furnish suitable and safe means for carrying on his business, and the fact that, very near where the workman is employed, there is machinery visible, in motion, and of a dangerous nature, yet not connected with the work in hand, is not conclusive that he has taken upon himself the risk of being injured by it in modification of the employer's contract; and if the workman meets with an injury while doing this work, the question whether he met with it through the want of due care on his part, or whether by reason of the neglect of his employer to give him suitable notice of the danger, is for the jury. Coombs v. Cordage Co., 102 Mass. 572; O'Connor v. Adams, 120 Mass. 431. The defendant was bound to furnish a safe and suitable place for the plaintiff to perform his work, and to apprise him of all dangers not apparent or obviously attending the work. The plaintiff used due care. The plaintiff had a right to rely, to a reasonable extent, upon the defendant having taken proper precautions, and giving him warning of the dangers attending the situation. Gaynor v. Railroad Co., 100 Mass. 213; Sonier v. Railroad, 141 Mass. 10, 6 N.E. 84. In order to charge one with contributory negligence, he must have knowledge of, or reason to apprehend, the danger. Beach, Contrib.Neg. 38; Langan v. Railroad Co., 72 Mo. 392; Gray v. Scott, 66 Pa.St. 345; Fowler v. Railroad Co., 18 W.Va. 579, 587. The plaintiff is not required to prove due care by direct affirmative evidence; the inference of such care may be drawn from the absence of all appearance of fault, either positive or negative, in the circumstances under which the injury was received. Mayo v. Railroad Co., 104 Mass. 137. The plaintiff is not required to exercise more care than is usual among the class to which he belongs. There is a natural presumption that every one will act with due care, and it cannot be imputed to the plaintiff, as negligence, that he did not anticipate culpable negligence on the part of the defendant. It cannot be held as a matter of law, that he was bound to know and appreciate the danger. Ferren v. Railroad Co., 143 Mass. 197, 9 N.E. 608; Thomas v. Telegraph Co., 100 Mass. 157; Mahoney v. Railroad Co., 104 Mass. 73. In short, contributory negligence is a question of law when the case decides itself, so that it remains only for the court to declare the rule. Railroad Co. v. Van Steinburg, 17 Mich. 99-120. The case at bar is in line with adjudged cases, in which it was held that the question of negligence was properly left to the jury. Coombs v. Cordage Co., 102 Mass. 572; Ryan v. Tarbox, 135 Mass. 207; Wheeler v. Manufacturing Co., 135 Mass. 295, and cases cited; Hackett v. Manufacturing Co., 101 Mass. 101; Ferren v. Railroad Co., 143 Mass. 197, 9 N.E. 608.

R.M. Morse, Jr., and H.G. Nichols, for defendant.

The questions arising are: Was there any evidence that the defendant was negligent? Did the plaintiff offer evidence of his due care? The burden is upon the plaintiff to prove the affirmative of both those propositions, and failing to do so he cannot recover. Murphy v. Deane, 101 Mass. 455; Blanchette v. Manufacturing Co., 143 Mass. 21, 8 N.E. 430. The presiding judge ruled correctly that there was no evidence to sustain either proposition. There was no obligation on the defendant's part to use one kind of machinery rather than another. Coombs v. Cordage Co., 102 Mass. 572; Sullivan v. Manufacturing Co., 113 Mass. 396; Ford v. Railroad Co., 110 Mass. 240; Railroad Co. v. Flanigan, 77 Ill. 365. If the danger was apparent, and the plaintiff had sufficient knowledge and capacity to understand it, there was no want of care in exposing the plaintiff to it. Coombs v. Cordage Co., supra; Sullivan v. Manufacturing Co., supra; Williams v. Churchill, 137 Mass. 243; Felch v. Allen, 98 Mass. 572; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231; Taylor v. Manufacturing Co., 140 Mass. 150, 3 N.E. 21, and 143 Mass. 470, 10 N.E.Rep, 308. The plaintiff, having sufficient knowledge and capacity to appreciate the danger, assumed the risk in agreeing to work in the place where he did. Felch v. Allen, 98 Mass. 572; Huddleston v. Machine Shop, 106 Mass. 282, 285. The fact that the plaintiff was employed in doing extra work throws no greater responsibility on the defendant, the plaintiff having consented to do the work. Leary v. Railroad Co., 139 Mass. 580, 2 N.E. 115.

OPINION DEVENS, J.

It was for the plaintiff to show, both that he himself was in the exercise of due care, and that the injury to him was occasioned by the negligence of defendant. He was an intelligent man of about 37 years of age, who had been in the employ of the defendant for about three months, and, as a machinist and engineer, employed to run the engine and pumps and have charge of them. He had previously been employed in this business elsewhere for three seasons, and part of a fourth, taking the whole care of the engine, and keeping it in ordinary repair. On the day of the accident he had been asked by the superintendent of defendant's works to fix the stamp under his direction; the superintendent telling him "what he wanted done, and how he wanted it done," which was by taking out the lining of the motor, and fitting in a new one. The plaintiff assented, and, when ready to go to work, the superintendent "went in and showed [him] what he wanted done, and what had got to be done." The plaintiff took charge of this job voluntarily. It was not in the regular line of his employment, but was extra work, for which he was to receive extra compensation. The engine was in motion; a shaft passing through the "stamp-room," as it was called, and revolving at the rate of 170 times a minute. A set-screw projected about an inch from the collar of the smooth shaft, which collar was about three inches broad and fixed on the shaft, contiguous to the base or journal holding the end of the shaft. The set-screw was in the middle of the collar, and kept it in its place. The plaintiff was at work about three feet from this set-screw, upon the platform on which the motor was placed. He describes the accident as follows: "I was at work in the stamp-room in front of the motor here." "Mr. Scott from above lowered the lining down and [it] was partly in the motor, and Mr. Morrissy and I were pushing it in. I stepped down, put my shoulder underneath the corner...