Mcguinness v. City of Worcester

• Decision Date: 02 January 1894
• Citation: Mcguinness v. City of Worcester, 160 Mass. 272, 35 N.E. 1068 (Mass. 1894)
• Parties: McGUINNESS v. CITY OF WORCESTER.
• Court: Supreme Judicial Court of Massachusetts

160 Mass. 272

35 N.E. 1068

McGUINNESS v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

January 2, 1894

COUNSEL

William A. Gile, for plaintiff.

W.S.B Hopkins and Frank B. Smith, for defendant.

OPINION

BARKER J.

The defendant's counsel having argued to the jury that the plaintiff could not maintain her action because she admitted in her testimony that she knew of the defect, and concluded to take her risk, her own counsel asked the court to rule that if she"saw the ice before crossing it, and did not fully comprehend the danger, by reason of the fact that it was not light, or otherwise, she would not be precluded from recovering."The court gave the ruling in the words of the request, but supplemented it by further instructions to which the plaintiff excepted, and the first question raised is whether the additional instructions were correct.They were, in substance, that if a person of ordinary intelligence would have been unable to comprehend the danger by reason of its obscurity, resulting from the absence of light, or otherwise, and a person of ordinary prudence would have ventured, the plaintiff's knowledge of the danger would not, as matter of law, preclude her from recovering, but would be merely an element in determining whether she was in the exercise of due care; but, if a person of ordinary prudence would have appreciated and avoided the danger, then she must be held to have appreciated it, and if, under such circumstances, she determined to cross the ice, she did so at her peril, and could not recover.It is familiar law that knowledge of a defect in the highway does not preclude a traveler from recovering, but is merely an incident to be considered by the jury in determining whether the traveler was in the exercise of due care.Reed v. Northfield,13 Pick. 94;Lund v. Tyngsboro,11 Cush. 563;Horton v. Ipswich,12 Cush. 488;Smith v Lowell, 6 Allen, 39;Frost v. Waltham,12 Allen, 25;Whittaker v. West Boylston,97 Mass. 273;Thomas v. Telegraph Co.,100 Mass. 156;Mahoney v. Railroad Co.,104 Mass. 73;Lyman v Amherst,107 Mass. 339;Barton v. Springfield,110 Mass. 131;Whitford v. Southbridge,119 Mass. 564;Dewire v. Bailey,131 Mass. 169;Kelly v. Blackstone,147 Mass. 448, 18 N.E. 217;Pomeroy v. Inhabitants,154 Mass. 462, 28 N.E. 899;Norwood v. City of Somerville, (Mass.)33 N.E. 1108.And it has been stated as a general principle that previous knowledge of a danger is not conclusive evidence of negligence in failing to avoid it.Coombs v. Cordage Co.,102 Mass. 572, 585;Fitzgerald v. Paper Co.,155 Mass. 155, 161, 29 N.E. 464.See, also, Snow v. Railroad Co., 8 Allen, 441;Looney v. McLean,129 Mass. 33.This doctrine was recognized by the presiding justice in the case at bar, and he would doubtless have embodied it in his own words in his instructions to the jury, if the request for the specific ruling given had not been presented; and the plaintiff cannot complain because it was given to the jury in the language chosen by her counsel.

But when the jury had been thus told that if, for any reason, she did not comprehend the danger, she would not be precluded from recovering by the fact that she saw the ice before attempting to cross, it was also the duty of the presiding justice to give them the law to be applied in determining whether the plaintiff, though not precluded by her knowledge of the defect, was, under all the circumstances, in the exercise of ordinary care.The additional instructions excepted to were pertinent to this branch of the case, and when so considered, were correct.They were, in substance, that her conduct was to be tried by that of ordinarily intelligent and prudent persons in like circumstances, and that, if she took a risk which such persons would have avoided, she did do at her peril.This was correct, not because of the doctrine "volenti non fit injuria," but because so taking the risk was negligence; and the language used by the presiding justice was merely a way of saying that such conduct was not ordinary care.In Thomas v. Telegraph Co., ubisupra, Hoar, J., says: "If a party, with full knowledge of the existence of an obstruction or defect in a highway, willfully or recklessly keeps on, and involves himself in danger which he had no reasonable cause to believe that he could successfully encounter, he acts at his own risk, and must take the consequences."It is plain that the reason why he acts at his own risk is that it is negligence, and not due care, for one, under such circumstances, to involve himself in a danger which he has no reasonable cause to believe that he can successfully encounter.In dealing with the same doctrine in Dewire v. Bailey, ubisupra, Field, J., says "that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner...