Lynch v. Allyn

• Decision Date: 01 December 1893
• Citation: 160 Mass. 248,35 N.E. 550
• Parties: LYNCH v. ALLYN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 248

35 N.E. 550

LYNCH v. ALLYN.

Supreme Judicial Court of Massachusetts, Hampden.

December 1, 1893

COUNSEL

T.B. O'Donnell, for plaintiff.

J.B Carroll, for defendant.

OPINION

LATHROP, J.

This is an action for personal injuries sustained by the plaintiff while in the employ of the defendant, by reason of the falling upon him of a bank of earth. The declaration contained three counts,--the first at common law; the second under St.1887, c. 270, § 1, cl. 1; and the third under section 1, cl. 2, of the same act. At the trial the plaintiff elected to proceed under the last two counts. The case was submitted to the jury, who returned a verdict for the plaintiff, and the case comes before us on the defendant's exceptions to the refusal of the presiding judge to give certain rulings requested. There was evidence from which the jury would have been warranted in finding the following facts: The bank in question was on the land of a third person, and was composed of hard pan and clay, with some sand. It was from 8 to 10 feet high, and 15 or 20 feet long. The plaintiff had been in this country but a short time. He was a man of middle age, and had worked in the open air in Ireland, digging with a spade or shovel, but had never used a pick. When he was first employed by the defendant he was set to work digging up earth and picking up roots. After doing this work for a few days, he was set to work on the bank, and told by the defendant's superintendent to go down to the bottom, get into the bank and undermine it, and that the superintendent "would get on it with bars." The superintendent, who was a witness for the defendant, testified: "They always begin by picking at the bottom of the bank, and when the proper depth is reached they pry the top over with bars, and it falls over." After the plaintiff had been at work for about 10 minutes, as he testified, the superintendent left. The plaintiff continued to work for some time, when the bank fell, and broke his leg. He testified that "he saw no one watching the bank; that no one told him of any danger or risk about the bank; that he thought there was no danger or risk about the bank; and he knew nothing at all about it, only just to do as he was told." He also testified that when he went to work he noticed that the bank "leaned out a little at the top." The superintendent testified that "a bank with sand in it is more liable to fall than a clay bank, and he meant to guard against it; that when he left the bank he intended to come back very soon, and that he understood all the time he was looking after the bank and the men." In answer to the question, "Is it not true that a bank, before it gives way, gives some indication that it is going to fall?" he said, "Not certainly."

1. The first ruling asked for was that, on the whole evidence, the plaintiff was not in the exercise of due care, and cannot recover under the second or third counts of his declaration. We are of opinion that the judge rightly refused to give this instruction, and left the question of the plaintiff's due care to the jury. While there was evidence coming from the defendant's witnesses tending to show carelessness on the part of the plaintiff, the jury were not bound to believe these witnesses. The case is not one where there was no evidence of what the plaintiff was doing at the time the bank fell. The jury had all the facts and circumstances in evidence before them, and it was for them to pass upon the question whether or not the plaintiff was in the exercise of due care.

2. The second request was: "The plaintiff cannot recover under the second count of his declaration, as there was no evidence that there was any negligence on the part of the defendant." Section 1, cl. 1, St.1887, c. 270, is not, however, limited to the negligence of an employer, but includes the negligence "of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition." The court properly refused to give this ruling.

3. The third request made by the defendant was as follows: "The plaintiff cannot recover under his second count, because there was no evidence that the accident occurred by reason of any defect or want of repair in the condition of the ways works, or machinery connected with or used in the business of the defendant." This request raises the principal question in the case, namely, whether the liability of a bank of earth upon which laborers employed by a person are at work, to fall when undermined, if not shored up, can be said to be a "defect in the ways, works, or machinery connected with or used in the business of the employer," when the work on the bank is simply the leveling of it for the purposes of grading the land of a third person. It seems to us that clause 1 of this section has no application in a case like the one before us, and that the request should have been given. It must be borne in mind that "the right of an employe to maintain an action under this statute is not identical with his right to maintain an action at common law. It may be greater or it may be less." Coffee v. Railroad Co., 155 Mass. 21, 22, 28 N.E. 1128. The language of the section seems to us to point to ways and works of a permanent character, such as are connected with or used in the business of an employer. Hence in Howe v. Finch, 17 Q.B.Div. 187, it was held that the section did not apply to ways or works in process of construction. And in Willetts v. Watt, [[[1892] 2 Q.B.92, where a workman was injured by falling into a catchpit in the floor of a workshop, which was generally kept covered, but the cover of which was off at the time of the accident for a temporary purpose, it was held by the court of appeal that there could not be said to be a defect in the condition of the way; and Lord Justice Fry said that the language of this section pointed to a defect of a chronic character. All of the members of the court concurred in saying that there was no defect in the condition of the way, but merely a negligent user of it, by allowing the way to be used when the lid was off, without giving warning. So it has been held by this court that rubbish of an accidental or temporary character on the floor of a room where an employe is at work cannot be said to be a defect in the condition of the ways, within the statute. O'Connor v. Neal, 153 Mass. 281, 26 N.E. 857; May v. Machine Co., 154 Mass. 29, 27 N.E. 768. And in Regan v. Donovan, 159 Mass. 1, 33 N.E. 702, it was held that contractors, by setting the plaintiff to work on the premises of a third person, where there were movable steps leading into a cellar, going down which the plaintiff was injured, could not be said to adopt the steps as a way used in their business. The reasoning in the case of Brannigan v. Robinson, [1892] 1 Q.B. 344, relied upon by the plaintiff, does not seem to us to be in accord with the earlier decision of the same court in Howe v....