McCarthy v. Morse

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG, J.
• Citation: McCarthy v. Morse, 197 Mass. 332, 83 N.E. 1109 (Mass. 1908)
• Decision Date: 27 February 1908
• Parties: McCARTHY v. MORSE et al.

197 Mass. 332

83 N.E. 1109

McCARTHY v. MORSE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1908

COUNSEL

A. K. Cohen, for plaintiff.

Walter I. Badger, William H. Vincent, and Wm. Harold Hitchcock, for defendants.

OPINION

RUGG J.

This is an action of tort by a foreman in the employ of the water department of the city of Boston, for injuries sustained while attempting to move a wooden railing of a temporary bridge about 24 feet wide and 13 feet long, which spanned a trench 8 feet in depth, excavated by men in charge of the plaintiff. The bridge had been erected the day before under the direction of the plaintiff at a junction of two public streets, in order to provide a passage for travelers over the excavation. On each side of the bridge and extending somewhat beyond it at both ends was a railing, which consisted of light wooden saw horses 2 feet wide at the base, resting upon but not attached to the floor of the bridge, and about 2 feet in from its edge, connected by planks nailed on their tops so as to form a continuous line. Either row of saw horses could be moved by taking hold of it anywhere. Just before the accident the plaintiff, who was standing upon a bank of earth near the trench and bridge, saw two wagons, one belonging to each of the defendants, standing close together on the bridge but headed in opposite directions. The evidence was conflicting as to the precise position of each wagon, but there was loud talk between the respective drivers, and the hubs of the two wagons were so situated that the teams could not pass without collision. There was evidence tending to show that the plaintiff, observing this situation, jumped upon the bridge between its edge and the wooden saw horses opposite the team of one of the defendants, in order to move the saw horse nearer to the edge of the bridge, and thus give the teams more room to pass, and that it was a part of hid duties as foreman to it was a part of his duties as foreman to clear for the purpose of travel, particularly with the view of giving free access to the engines of the Boston fire department in case of fire, and that in pursuance of this duty he went to move the wooden saw horse * * * for the purpose of allowing the teams to go over the bridge and clear the way for travel,' and that the driver of the team nearer the railing backed a few inches three times, in order to allow the other team to clear and pass, and that, this end not being attained, both teams started up together, as the plaintiff was taking hold of the wooden saw horse to move it so as to make wider the passageway on the bridge, and this driver, looking toward the plaintiff, struck his horse with a whip, which caused the horse to start sharply and suddenly, and throw the wooden saw horse against the plaintiff and injure him.

A verdict was rendered for the plaintiff, and the exceptions of the defendants Johnson & Co. bring the case here. All the exceptions, except those relating to the plaintiff's due care and assumption of risk and the effect of his violation of the city ordinance, are either expressly waived or treated as waived because not argued.

There was evidence that it was a part of the duty of the plaintiff to see that the bridge was not obstructed, and was kept open for...