Veginan v. Morse
| Decision Date | 29 November 1893 |
| Citation | 160 Mass. 143,35 N.E. 451 |
| Parties | VEGINAN v. MORSE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William A. Gile, for plaintiff.
W.S.B Hopkins and Frank B. Smith, for defendant.
1. In statutes like that under which two counts of this action were brought the requirement of notice is held to make a condition precedent to the right to bring an action, not on a nice interpretation of the particular words used, but upon a general view of what the legislature would be likely to intend. Gay v. Cambridge, 128 Mass. 387; Moyle v. Jenkins, 8 Q.B.Div. 116, 118; Keen v. Dock Co. Id. 482, 484, 485; Rob. & W. Employ. Liab. (3d Ed.) 310. In this case the writ was made out before the notice was served. The making of the writ is prima facie the commencement of the action. Gardner v. Webber, 17 Pick. 407; Bunker v. Shed, 8 Metc. (Mass.) 150, 153. It is true that the notice was left at the defendant's house the same day. But the writ was not made out provisionally, as in Seaver v. Lincoln, 21 Pick 267; and there is no reason, except the presumable intention of the plaintiff to begin his action effectually, why the writ should be considered to have been purchased after the notice was served. The fact is the other way, and such a fiction would not "most accord with the truth and justice of the case," within the doctrine of Badger v. Phinney, 15 Mass. 359, 364, and Gardner v. Webber, 17 Pick. 407, 413. The ruling that the action could not be maintained upon the two counts in question was correct.
In face of the express testimony that the plaintiff could not have seen, and did not see, the revolving knives of the planer, and did not know the danger, we cannot assume, as in Toomey v. Donovan, 158 Mass. 232, 237, 33 N.E. 396, that he did know it, or ought to have known it, whatever we might say as jurymen. The plaintiff originally was not hired specially to work on machinery, but to work in the mill yard. We cannot say, as matter of law, that by the terms of his employment he took the machine as it was, although it may have been open to the jury to find that he had acquired such knowledge, and that he had been put to work on the machine so frequently that it had become one of the risks which he assumed under his later employment.
2. We assume, for the purposes of the case, that the plaintiff was entitled to go to the jury, and had a right to put in any proper evidence bearing on the question whether the defendant had exercised reasonable care in providing and maintaining the machinery used by him. The questions put for this purpose were questions as to the use of guards upon other specified machines elsewhere, or upon some machines, not specified, within the observation of the witness. The question to the defendant, "Don't you know that Mr. Baker's planers *** have blowers ***?" was not an inquiry into his knowledge at the time of the accident, but was an emphatic form of question on cross-examination, intended to bring out an admission of the present fact. The most general questions put did not go to the point of establishing that planers usually had guards, but were inquiries whether the witness had seen guards upon planers, and whether the planers he had worked upon had such guards. These questions were excluded.
It has been held to be competent for the purpose mentioned to show what other kinds of machinery or appliances were used...
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