Mcnee v. Coburn Trolley-track Co.
| Decision Date | 24 February 1898 |
| Citation | 49 N.E. 437,170 Mass. 283 |
| Parties | McNEE v. COBURN TROLLEY-TRACK CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.L. Green, for plaintiff.
Henry A. King, for defendant.
The general condition of the elevator was such that a jury might find that the defendant would be negligent in continuing its use for carrying workmen up and down while engaged in their work, if this was done without warning them of the risk. It is true that the particular defect which caused the accident was not open to observation, or easy to discover. But there was evidence tending to show that it was caused by the use of the elevator while it was in a condition which rendered it unsuitable for use, and that the defendant was fairly put upon inquiry as to its safety, and that its duty in this respect was different from and greater than that of the workmen themselves. The question, then, remains whether the posting of the notices in the elevator showed such a performance by the defendant of its duty of warning or cautioning the workmen, or such contributory negligence or assumption of the risk on the part of the plaintiff, as to entitle the defendant to have the case withdrawn from the jury. While, upon the evidence reported, a verdict for the defendant would be more satisfactory, we are unable to hold that the defendant was entitled to such verdict as a matter of law. As a general rule, the sufficiency of such warning or caution is a question of fact for the jury. Indermaur v Dames, L.R. 1 C.P. 274; Id., L.R. 2 C.P. 311. It is true that the plaintiff was not at liberty to shut his eyes in order to avoid reading a plain notice of warning. If it be assumed that the plaintiff must be held chargeable with a knowledge of the contents of the notice, or at least that the defendant performed its duty of cautioning the workmen by posting the notices in the elevator, we think the plaintiff still had the right to go to the jury upon the question whether the notices remained in force at the time of the accident or had become a dead letter. There was evidence tending to show that the notices were put in the elevator a long time before the accident, by a former treasurer whose connection with the company had then ceased; that they had become soiled, and somewhat indistinct and torn; and that all of the defendant's workmen, including the general superintendent of the building, were in the...
To continue reading
Request your trial