Pickwick v. McCauliff

• Decision Date: 16 October 1906
• Parties: PICKWICK v. McCAULIFF.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 70

78 N.E. 730

PICKWICK v. McCAULIFF.

Supreme Judicial Court of Massachusetts, Worcester.

October 16, 1906

COUNSEL

Ralph A. Stewart, Fredk. H. Nash, and Henry J. Hart, for plaintiff.

John R Thayer, Henry H. Thayer, and Jas. H. McMahon, for defendant.

OPINION

MORTON J.

This is an action of tort for personal injuries sustained by the plaintiff on July 26, 1904 at West Boylston while at work as a civil engineer and inspector for the Metropolitan Water & Sewerage Board. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding justice to give certain instructions that were requested. The instructions requested were in substance that on all the evidence the plaintiff could not recover, that he was not in the exercise of due care, that he assumed the risk, that he was a mere volunteer or licensee and that a certain release given by the plaintiff to the commonwealth operated as a bar to his recovery in this action.

Without reviewing it in detail we think that there was evidence of negligence on the part of the defendant. There was testimony tending to show that there should have been guys on the bottom of the derrick or that it should have been steadied by hand. And the jury were warranted in finding, if they did so find, that the accident was due to failure on the part of those in charge of the work of setting up the derrick to use one or the other of these precautions. The jury might also have found that there was negligence on the part of the engineer in regard to the manner in which he operated the engine. One witness testified that he, the engineer 'opened the throttle of the engine; he gave it a yank; he didn't intend to pull it out so far * * * if just a strain had been taken no trouble would have happened. An excessive yank caused the trouble.'

It could not be ruled as matter of law that the plaintiff was a mere volunteer or licensee or that he was not in the exercise of due care or that he assumed the risk. The defendant concedes that the plaintiff rightfully entered on the premises where defendant's men were setting up the derrick. If the jury believed the plaintiff as they must have done, he was there in the performance of duties required of him by the nature of his employment under the contract between the defendant and the commonwealth, and therefore was not a volunteer or licensee. And the jury properly could have found, and no doubt did find, that in sitting down on the boom as he and Mr. Allen did the plaintiff had no reason to apprehend any danger from the derrick and therefore was not wanting in the exercise of due care, and did not assume the risk of the accident which occurred. Mahar v. Steuer, 170 Mass. 454, 49 N.E. 741; McMahon v. McHale, 174 Mass. 320, 54 N.E. 854.

The remaining question relates to the...