Mckee v. Tourtellotte

• Citation: 167 Mass. 69,44 N.E. 1071
• Parties: MCKEE v. TOURTELLOTTE.
• Decision Date: 23 October 1896
• Court: United States State Supreme Judicial Court of Massachusetts

167 Mass. 69

44 N.E. 1071

MCKEE v. TOURTELLOTTE.

Supreme Judicial Court of Massachusetts, Hampden.

October 23, 1896

COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

Chas L. Long, for defendant.

OPINION

HOLMES J.

This is an action for injuries suffered in consequence of the caving in of a ditch bank while the plaintiff was at work connecting water pipes in the ditch. The defendant does not deny that he knew of the danger, but, on the contrary, says that it was obvious, and that he and others warned the plaintiff of it and that he told him not to work there. The plaintiff's evidence is that he was working there by the implied command of the defendant, and that the defendant declared the ditch to be all right. Seemingly, the plaintiff knew that the bank overhung a couple of feet.

The defendant asked for a ruling that it was no part of the plaintiff's duty to follow instructions of the defendant to work in a dangerous place, and if the plaintiff knew, or had reasonable cause to know, that it was dangerous to work in the ditch, he could not recover, although the defendant may have said to him that the ditch was all right. This was not given in the words of the request, but as we interpret the instruction, was meant to be given in substance, pretty nearly, so far as correct. The court said "If you should find that he was not bound to anticipate the danger of the earth caving in, that that part was left safe for him, and if you should find, upon the evidence, that his master, standing by, observed him doing the work, and made a declaration that it was safe, still that would not protect him against the obvious perils and dangers that existed, and which you have a right to take into consideration." But, later in the charge, the court added that "the mere fact that a man knows the unsafe condition of a thing does not necessarily, as a matter of law, constitute him negligent in case he does that thing." This contradicted the ruling asked, and rightly, although possibly the illustrations were not the most apposite that could have been chosen. When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. But if against this judgment is set the judgment of a superior, one, too, who from the nature of the callings of the two men, and of the superior's duty, seems likely to make the more accurate forecast, and if to this is added a command to go on with his work, and to run the risk, it becomes a complex question of the particular circumstances whether the inferior is not justified, as a prudent man, in surrendering his own opinion and obeying the command. The nature and the degree of the danger, the extent of the plaintiff's appreciation of it, and the exigency of the work all enter into consideration, and no universal rule can be laid down. See Hennessy v. City of Boston, 161 Mass....