Sylvain v. Boston & M.R.R.

• Decision Date: 28 October 1932
• Citation: 182 N.E. 835,280 Mass. 503
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SYLVAIN v. BOSTON & M. R. R.

280 Mass. 503

182 N.E. 835

SYLVAIN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1932.

Report from Superior Court, Suffolk County; Nelson P. Brown, Judge.

Action by Edward Sylvain against the Boston & Maine Railroad.The trial judge directed a verdict for defendant.On report.

Judgment for defendant.

L. M. Harlow, of Boston, for plaintiff.

F. P. Garland and J.De Courcy, both of Boston, for defendant.

LUMMUS, J.

The report brings up the question whether the trial judge was right in directing a verdict for the defendant.The plaintiff, an experienced roofer's helper, was hurt by falling from the nearly flat roof of a freight house while working for the defendant.He was rolling out a roll of tar paper along the edge of the roof, next to the cleat or flashing, while one Crowley, the roofer in charge of the job, was applying pitch to the roof ahead of the paper.Crowley saw that the paper was not rolling straight, and told the plaintiff to straighten it.Straightening a roll under such circumstances can often be accomplished by rolling it in the opposite direction a little and pulling it straight.If, however, the paper is too much out of line, or stuck down too hard, the practice is to cut it off and begin the work again from that point.The plaintiff suggested cutting the paper, but Crowley said, ‘No, you get down on your knees and push it up.’The plaintiff knelt with his left foot in the wooden gutter and his right knee on the roof about two feet from the edge, tried to straighten the paper, lost his balance, and fell to the ground.On cross-examination he testified that he knew the paper was stuck down too hard to be straightened, and admitted that he was hurt ‘trying to do an impossible thing in a dangerous way.’

[2] The declaration is at common law, alleging negligence of the defendant, its agents or servants.It is not contended that the plaintiff was engaged in interstate transportation, making the state law inapplicable.Chicago & North Western Railway Co. v. Bolle, 284 U. S. 74, 52 S. Ct. 59, 76 L. Ed. 173;Chicago & Eastern Illinois Railroad Co. v. Industrial Commission of Illinois, 284 U. S. 296, 52 S. Ct. 151, 76 L. Ed. 304;New York, New Haven & Hartford Railroad Co. v. Bezue, 284 U. S. 415, 52 S. Ct. 205, 76 L. Ed. 370.We assume, as the parties have assumed, that the defendant was not insured under the Workmen's Compensation Act, and consequently the defences of contributory negligence, assumption of risk and the fellow servant rule are not open.G. L. (Ter. Ed.)c. 152, § 66;Armburg v. Boston & Maine Railroad, 276 Mass. 418, 177 N. E. 665, affirmedBoston & Maine Railroad v. Armburg, 285 U. S. 234, 52 S. Ct. 336, 76 L. Ed. 729.But the defendant may still rely upon the so-called contractual assumption of risk, the doctrine that a servant assumes the risk of the conditions of the employment which were existing and manifest when the employment began; a doctrine more accurately expressed by saying that the master owes the servant no duty to change the obvious conditions and methods of business in use when the employment began, even though they are less safe than others, and so cannot be charged with negligence in continuing them.Ashton v. Boston & Maine Railroad, 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B, 1281;Wood v. Danas, 230 Mass. 587, 120 N. E. 159.Although voluntary assumption of lisk, when open, must be pleaded and proved by the defendant(Manning v. Prouty, 260 Mass. 399, 402, 157 N. E. 364), the so-called contractual assumption of risk need not be, for it relates to the issue of the defendant's negligence, as to which the burden of proof is on the plaintiff.Cullalucca v. Plymouth Rubber Co., 217 Mass. 392, 396, 104 N. E. 956;Ashton v. Boston & Maine Railroad, 222 Mass. 65, 70, 109 N. E. 820, L. R. A. 1916B, 1281;Cuozzo v. Clyde Steamship Co., 223 Mass. 521, 524, ...