Leary v. Boston & A.R. Co.

• Decision Date: 25 June 1885
• Citation: 139 Mass. 580,2 N.E. 115
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEARY v. BOSTON & A.R. CO.

139 Mass. 580

2 N.E. 115

LEARY

v.BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts.

Filed June 25, 1885.

This was an action of tort, to recover damages on account of personal injuries. The plaintiff was in the employ of the defendant as a freight truckman, and was working temporarily, by order of a servant of the defendant, as fireman on a locomotive in defendant's freight-yard. While attempting to get off the engine he fell or was thrown under the wheel, and lost a leg. There was evidence to the effect that the plaintiff was unwilling to work on the locomotive, and only did so for fear of losing his employment if he refused. At the trial in the lower court the presiding judge ruled that the plaintiff was not entitled to recover, and the plaintiff excepted.

Crowley & Maxwell, for plaintiff.

A.L. Soule, for defendant.

DEVENS, J.

Where an employer knows the danger to which his servant will be exposed in the performance of any labor to which he assigns him, and does not give him sufficient and reasonable notice thereof, its dangers not being obvious, and the servant, without negligence on his own part, through inexperience or reliance on the directions given, fails to perceive or understand the risk, and is injured, the employer is responsible. The dangers of a particular position, or mode of doing work, are often apparent to a person of capacity or knowledge of the subject, while others, from youth, inexperience, or want of capacity, may fail to appreciate them; and a servant, even with his own consent, is not to be exposed to such dangers, unless with instruction and cautions sufficient to enable him to comprehend them, and to do his work safely with proper care on his own part. But the servant assumes the dangers of the employment to which he voluntarily and intelligently consents; and while, ordinarily, he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master as to them. Coombs v. New Bedford Cordage Co. 102 Mass. 572;Sullivan v. India Co. 113 Mass. 396.

There was, in the case at bar, no defect in the roadway, the engine, or other appliances, nor any negligence in the management of them. There was no evidence tending to show that the defendant was hurt by reason of any incapacity to understand the character of the employment in which he was engaged. He was a man of full age and ordinary intelligence, and, although he had been brought up on a farm, and had ridden but six times in the railroad cars, had been in the employ of the defendant for three years, loading and unloading cars in their yard, and shipping freight in their warehouses. Nor was there any peculiar danger which required to be pointed out to an inexperienced person. That of getting off the engine when it was in motion, or of standing in such a position as to be exposed to be thrown off by its jolting, were entirely obvious; and that the engine was liable to jolt in crossing the frogs and switches, which were numerous in the freight yard, where alone this engine was used for the purpose of moving freight, making up trains, etc., were known to the plaintiff. That the plaintiff must have had full knowledge of all the danger he incurred while acting as a fireman on the engine, is fully shown by the fact that he had acted as fireman about 20 times, and from one to three hours each time. And, although he testified “that he never got off the engine at any other time when it was in motion,” he must have been aware of the danger of being thrown off which would attend the attempt to leave it. Upon these facts it would be correct to rule that the plaintiff could not maintain the action, as no fault or negligence was shown on the part of the defendant.

The facts present another inquiry, which heretofore it has not been necessary to decide in this commonwealth. It is the contention of the plaintiff that if a servant, who is hired for work of a simpler character, as in the case at bar, is required by his employer to perform other duties,more dangerous and complicated, and although at first constantly objects thereto, finally, from fear of losing his employment, assents, and makes the attempt, and, doing his best, is injured, by reason of his ignorance and inexperience, he may maintain an action against his employer by reason of his negligence in setting him at work in a dangerous place, even if the plaintiff was aware of the danger, and might, under some...