Murch v. Thomas Wilson's Sons & Co.

• Decision Date: 23 May 1897
• Citation: 168 Mass. 408,47 N.E. 111
• Parties: MURCH v. THOMAS WILSON'S SONS & CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 408

47 N.E. 111

MURCH v. THOMAS WILSON'S SONS & CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1897

Plaintiff was engaged to pilot defendant's steamship. A first-class state room was assigned to him, in which he deposited his bag. In the course of the trip, the weather being cold and stormy, the third officer informed him that there was a chart room or deck house where he could sit and get warm, and that he would be called when wanted. The deck house was just behind the bridge on which the pilot stood when in service, was six feet square and about seven feet high, and had two cushioned seats or benches, one on each side. It contained a stove, which stood in the middle of the room, and was between two and three feet high and eight inches in diameter, not connecting with the outer air by any smoke pipe or funnel, and burning some patent fuel, which was of slow combustion, and which the pilot described as being like sawdust run together with some black substance. While the pilot was in such room the first officer came in and tried to open a small window on the side, but could not, and said to the pilot that they were burning a patent fuel; that they did not know what it was, or whether there was any danger in it, but to keep the door fastened partly open, and there would be no danger. He was in the room for a time, the door being partly open, and noticed no smoke or gas from the stove. After a cold and stormy trip, the vessel reached a point from which the ship's officers could pilot it, and the pilot went into the deck house, and laid down on one of the benches to sleep, leaving the door fastened partly open. Shortly afterwards he heard the mate order a sailor to put some fuel in the stove. Half an hour later the pilot was found lying against the stove, insensible from asphyxiation.

COUNSEL

E.S Dodge R.D. Weston-Smith, and Chas. Walcott, for plaintiff.

Chas Theo. Russell and Arthur H. Russell, for defendant.

OPINION

KNOWLTON J.

The chart room and the stove by which it was heated were a part of the permanent construction and arrangement of the steamship, and, in all their details, they were open to the observation of everybody who came upon that part of the ship. Such danger as there was from the use of them to one who engaged to act as pilot was an obvious risk of the business which was covered by his contract to serve on that ship. Parties entering into a contract for service by one of them make their engagements in reference to the subject-matter to which the contract relates, and their rights and liabilities depend upon the contract, as applied to the subject with which they are dealing. The employé impliedly agrees to assume all the obvious risks of the business in which he contracts to work. Among these are the open, manifest dangers attendant upon the use of the ways, works, and machinery of a permanent character that are plainly intended to be retained as a part of the plant to which the contract for service relates. It has often been held that an employer owes his employé no duty to change a business in these particulars in order to make it safer, even though in some parts his ways and works would not be deemed reasonably safe and proper if he was starting a new establishment to do the same kind of work under an arrangement...