O'Maley v. South Boston Gaslight Co.

• Citation: 32 N.E. 1119,158 Mass. 135
• Parties: O'MALEY v. SOUTH BOSTON GASLIGHT CO.
• Decision Date: 17 January 1893
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 135
32 N.E. 1119

O'MALEY
v.
SOUTH BOSTON GASLIGHT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 17, 1893.

Report from superior court, Suffolk county.

Action for personal injuries by William O'Maley against the South Boston Gaslight Company. A verdict was directed for defendant, and on request of plaintiff the case was reported for determination by the supreme judicial court. Judgment on verdict.

[158 Mass. 135]

[32 N.E. 1120]

J.P. Barlow, for plaintiff.

C.P. Greenough and J.P. Parmenter, for defendant.

KNOWLTON, J.

The plaintiff, while wheeling coal in a barrow on a run in one of the defendant's coal sheds, fell off and was injured. The action is brought under the employers' liability act, (St.1887, c. 270,) for an alleged defect in the ways, works, or machinery of the defendant; it being contended that the defendant was negligent in not providing guards on the runs to prevent such an accident. The plaintiff testified, and it was undisputed, that he has assisted in the same work, at various time, during the last 15 years, and that the coal shed and runs had all the time remained unaltered in construction. If the action were at common law, it would be too plain for argument that the plaintiff took the risk of such accidents as that which happened, and that the defendant is not liable. [158 Mass. 136]Fitzgerald v. Paper Co., 155 Mass. 155, 29 N.E.Rep. 464; Mahoney v. Dore, 155 Mass. ----, 30 N.E.Rep. 366. But it is contended that under the statute referred to the rule is different. It is well settled that, in the absence of a special contract affecting the rights and liabilities of the parties, the statute has taken away from defendants, in the cases mentioned in it, the defense that the injury was caused by the act of a fellow servant of the plaintiff. It is also established by an adjudication of this court, and by decisions under a similar statute in England, that it has not taken away the defense that the plaintiff, knowing and appreciating the danger, voluntarily assumed the risk of it. Mellor v. Manufacturing Co., 150 Mass. 362, 23 N.E.Rep. 100; Thomas v. Quartermaine, 18 Q.B.Div. 685; Yarmouth v. France, 19 Q.B.Div. 647; Thrussell v. Handyside, 20 Q.B.Div. 359; Walsh v. Whiteley, 21 Q.B.Div. 371; Smith v. Baker, (1891,) App.Cas. 325. Precisely how and when this defense can be availed of in cases where the ways, works, and machinery of the defendant are found to be defective has never been decided in this commonwealth. The nature of the...