Power v. Beattie
| Decision Date | 01 March 1907 |
| Citation | 194 Mass. 170,80 N.E. 606 |
| Parties | POWER v. BEATTIE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The declaration was as follows:
'And the plaintiff says that on the 17th day of June, 1903, he was in the employ of one Peter Rafter, of Taunton, and that said Rafter had contracted with the defendants to deliver to them certain quantities of stone for building purposes on certain premises within the control of the defendants and situated on the north side of Court street in Taunton in said county; that on said 17th day of June, 1903, while in the employ of said Rafter and as his servant in the execution of said contract with the defendants, with horses and a team he delivered several loads of said stones to the defendants on said premises, on said Court street; that it was the duty of the defendants to provide for Rafter and his servants a safe and suitable way for the delivery of said stones upon the premises within their control, but these defendants carelessly and negligently failed so to do, but did furnish the plaintiff an unsafe, dangerous, and defective way, whereby, and while in the exercise of due care, the plaintiff was hurt and injured, to his great damage.'
William E. Kelley, for plaintiff.
John W Cummings and James T. Cummings, for defendants.
The case was properly submitted to the jury, and the instructions requested by the defendant were rightly refused. The three main questions are extremely close. It is not for us to decide upon the facts, however, but only to determine whether there was sufficient evidence to support the finding by the jury for the plaintiff.
1. There was no want of due care on the part of the plaintiff in relying upon the signal of the man, whom he had seen giving directions to workmen about the premises, and who had, during the three or four days of his work, given him the signal to drive into the cellar, under conditions which had been before found to be reasonably safe. There was evidence that when he reached the point where he could see the changed condition of the way into the cellar, it was impossible for him to hold his team. Although the force of this evidence was considerably shaken upon cross-examination, yet upon the whole it cannot be said that there was insufficient ground for finding the fact to be as stated by the plaintiff. If there were no negligence on his part in driving his heavily loaded gear upon the sidewalk, and if after reaching this place, which was the first point on his route from which he could see the changed and dangerous condition of the way over which he was to drive into the cellar, it was beyond his power to stop his team, in that case the burden upon him of showing his own due care was sustained. If the jury found this to be the situation, then there was no occasion for the application of the maxim, Volenti non fit injuria.
2. If the evidence of the plaintiff be taken at its...
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