Hatt v. Nay

• Decision Date: 17 March 1887
• Parties: HATT v. NAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 186

10 N.E. 807

HATT v. NAY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 17, 1887

COUNSEL

D.F. Kimball, for plaintiff.

The defendant was bound to use due care in procuring and in retaining the foreman in his employ. If, in the exercise of due care, he might have known of the incompetency of the foreman, the defendant failed in his duty by retaining him in his employ. The plaintiff claims, therefore, that he ought to have been allowed to introduce "evidence of specific acts of carelessness on the part of the foreman on the same job, before the accident happened." The plaintiff's full rights, therefore, were not protected in this regard by allowing evidence merely of the foreman's reputation for competency in his position. Gilman v. Eastern R.R., 13 Allen, 440; Arkerson v. Dennison, 117 Mass. 407; Cayzer v. Taylor, 10 Gray, 275: Post v Boston, 141 Mass. 189, 4 N.E. 815. See Farwell v Boston & W.R. Corp., 4 Metc. 55; Osborne v Morgan, 130 Mass. 102.

Lund & Welch, for defendant.

Carelessness or negligence of a fellow-servant is not sufficient to render the master liable to a fellow-servant, unless it amounts to incompetency. That is one of the risks the fellow servant takes upon himself. Kielley v. Belcher Silver Min. Co., 3 Sawy. 437; Farwell v. Boston & W.R. Corp., 4 Metc. 49, 57; Hayes v. Western R. Co., 3 Cush. 270. The offer of the plaintiff, which the court against objection refused to allow, was to prove "specific acts of carelessness on the part of this foreman on this same job before this accident happened." This was clearly incompetent. Robinson v. Fitchburg R.R., 7 Gray, 92; Collins v. Dorchester, 6 Cush. 396; Maguire v. Middlesex R.R., 115 Mass. 239. The plaintiff must show that he is in the exercise of ordinary care, and guilty of no negligence. 2 Thomp.Neg. 1008, and note; Ladd v. New Bedford R.R., 119 Mass. 412; Coombs v. New Bedford Cordage Co., 102 Mass. 572, 585; Sullivan v. India Manuf'g Co., 113 Mass. 396; Dillon v. Union Pac. R. Co., 3 Dill. 319; Patterson v. Pittsburg & C.R. Co., 76 Pa.St. 389; St. Louis & S.E.R.R. v. Britz, 72 Ill. 256, 261; Davis v. Detroit & M.R.R., 20 Mich. 105, 124 et seq.; Wright v. New York Cent. R. Co., 25 N.Y. 564, 566, 567; Skipp v. Eastern Co. R. Co., 9 Exch. 223. It was the duty of the court to instruct the jury in all the law pertaining to the case, whether requested or not. This is not a matter of exception. Requests are only made as a matter of convenience to both court and counsel. Vaughan v. Porter, 16 Vt. 266.

OPINION

DEVENS J.

The plaintiff was permitted to put in evidence the reputation of the foreman, for skill and competency, by whose carelessness he alleged that he was injured while in the employ of the defendant. As the defendant was bound to use due care, both in procuring and retaining a suitable person as the foreman in his employ, this evidence was properly admissible. The plaintiff desired further to put in testimony as to certain specific acts of carelessness on the part of the foreman while engaged on the same job, and before the accident happened. This was properly excluded. Because a servant may have been guilty of negligence on certain specified occasions, it by no means follows that he was on the occasion in question, or that he might not ordinarily be a careful and skillful workman, and properly employed as such. The investigation of other individual acts of alleged carelessness on the foreman's part would have a necessary tendency to confuse the case, by collateral inquiries; to protract it indefinitely, if those inquiries were carefully made; and to mislead and distract a court or jury from the true issue. Robinson v. Fitchburg R. Co., 7 Gray, 92; Maguire v. Middlesex R. Co., 115 Mass. 239.

The ruling that if the plaintiff knew that the foreman was a careless and improper man, unskillful, habitually careless and negligent, and failed to notify defendant of those facts but continued in the service, he could not recover for an injury resulting from such carelessness as he understood fully the hazards of the business, and assumed this extra risk and hazard, was correct. Even if this ruling was not requested by defendant, it was appropriate to the matter in issue. The judge, in giving those instructions which he deems adapted to a proper decision, is not limited by the requests made to him. It is a familiar principle that if a servant,...