Hughes v. MaLden & Melrose Gaslight Co.
| Decision Date | 21 May 1897 |
| Citation | 47 N.E. 125,168 Mass. 395 |
| Parties | HUGHES v. MALDEN & MELROSE GASLIGHT CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S.A. Fuller, C.H. Blood, and C.F. Smith, for plaintiff.
John Lowell, Jr., and Samuel H. Smith, for defendant.
This is an action for personal injuries caused by the caving in of the sides of a trench in which the plaintiff was at work. There is a count at common law for not shoring the sides, and one under the employer's liability act for negligence of the defendant's superintendent in omitting the same precaution. A third was added for negligently setting the plaintiff at work in an unsafe place. The case differs from those which have been before the court in the fact that the defendant was not digging the trench, and, so far as appears, had no control over it. The trench was in a street in Malden, and had been dug by the city. In the process the gas pipe of the defendant had been exposed for about a hundred feet, and supported by stringers, and the defendant was ordered to remove it. The defendant's superintendent visited the place, and the next morning set the plaintiff and some other men to removing the pipe. The plaintiff had had two or three years' experience in digging trenches. This trench was six feet wide and five feet and ten inches deep and the earth was thrown up on the sides to a height of about a foot and a half; thus somewhat increasing the pressure. It was not shored, and had been open about four days, which increased the danger of the bank's falling. Also the earth was shaken by the constant moving of heavy wagons and trains in the neighborhood. The accident happened after the plaintiff had been at work about three hours, and just after the superintendent had left. The presiding judge excluded the plaintiff's testimony that he made no examination of the trench, but relied upon the superintendent to provide for his safety, and directed a verdict for the defendant. The case is here on exceptions.
The offer of evidence may be disposed of in a few words. If the plaintiff relied on the defendant for more than he had a right to, he did so at his own peril, and he had no right to prove it. If he only relied on those precautions being taken which it was the defendant's duty to take, evidence was superfluous to show that he had not waived his rights. Whichever may have been the case, the private operations of the plaintiff's mind were no measure of the defendant's duty.
The only question is what the plaintiff had a right to expect from the defendant when set to work in such a place. He had not a right to expect it to shore the sides of the trench, or to make it safer than it was, because, as was manifest, and as the plaintiff must be...
To continue reading
Request your trial