Haley v. Lombard
| Citation | 93 N.E. 633,207 Mass. 545 |
| Parties | HALEY v. LOMBARD et al. |
| Decision Date | 06 January 1911 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. W. Frost and M. B. Breath, for plaintiff.
R. W Nason, T. W. Proctor, and W. H. Vincent, for defendants.
The plaintiff's intestate was an experienced teamster in the employ of the defendants. There was evidence from which it might have been found that about a week before his injury the plaintiff's intestate showed to a superintendent of the defendants a strap used for binding a load, calling attention to its weakness. The latter, after examination of the strap said: 'That will hold all the load you will ever put on your wagon.' About a week later, while the plaintiff's intestate was pulling hard to tighten the strap around his load, it broke, he fell into the street between the wheels of a passing wagon, and received fatal injuries. The street was adjacent to the great market in Boston, and was lined with teams on each side, leaving space enough between so that there was no blockade.
1. It is urged that the plaintiff's intestate was not in the exercise of due care, for the reason that he braced one foot upon the wheel of his wagon in order the better to tighten the strap around some barrels, knowing its weakened condition, and pulled upon it hard in such a position that he must have foreseen that if it gave way he would be likely to fall under the heavy wagon which he saw approaching. He had spoken of deterioration in the strap to his superior, who had given emphatic assurance of its strength. It does not appear that he dissented from this view or further discussed the subject, but there was testimony that after the accident he said that he supposed the superintendent knew better about it than he did, and he let it go at that. It could not have been ruled, as matter of law, in view of this testimony and his subsequent conduct, that he did not rely on this statement, and it might have been inferred that he surrendered his own opinion to that thus expressed by the representative of his employer. It was said in Carriere v. Merrick Lumber Co., 203 Mass. 322, at page 326, 89 N.E. 544, 545, that 'an assurance of safety by a superintendent has usually been held to be such a consideration as to render the due care of a workman relying upon it a question of fact.' While there may be exceptions to this rule, to considerations appear which take the present case out of its operation. If the deceased relied upon the assurance as to the strap given by the superintendent, then the fact that he was in such position when pulling upon it that in case it broke he might fall under passing vehicles was of slight significance. It does not appear that he could have stood in any other position and efficiently performed his work. The street was a busy one, and whether he could have waited for the heavy wagon by which he was injured to pass without encountering other dangers was one of the circumstances to be weighed by the jury.
2. Whether the deceased assumed the risk by voluntarily exposing himself to danger, after knowing the facts and having a full appreciation of their bearing upon...
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