Wood v. Danas

• Decision Date: 28 June 1918
• Citation: 120 N.E. 159,230 Mass. 587
• Parties: WOOD v. DANAS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 587

120 N.E. 159

WOOD

v.DANAS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 28, 1918.

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

Action by Catherine J. Wood against James J. Danas and another, resulting in verdict for defendants. On report to the Supreme Judicial Court. Judgment ordered for plaintiff.

Qua, Howard & Rogers, Stanley E. Qua, and Francis M. Qua, all of Lowell, for plaintiff.

Bennett Silverblatt, of Lowell, for defendants.

CARROLL, J.

The plaintiff entered the defendants' employ in November, 1915. She was injured March 11, 1916. In the room where she worked there was a flight of steps which she had been directed by the defendants to use. ‘The tread of one of said steps near the bottom was missing.’ She was injured by reason of this defect, which existed when she began to work for the defendants and which was open and obvious.

The plaintiff testified, that about a month before the injury complained of, she reported to the defendant Charles Danas that the step was gone, and he replied ‘he was going to fix those steps for her’; that several weeks before the accident she complained to the defendant James J. Danas of the condition of the steps, and he made no reply.

It appeared that ‘no person in the employ of the defendants other than the defendants themselves * * * had charge of remedying defects, if any, in the ways, works or machinery, or caused the same to be remedied, or reported their existence.’ The defendants were not subscribers under the Workmen's Compensation Act. St. 1911, c. 751.

The report of the presiding judge states that the plaintiff assumed the risk and that St. 1909, c. 363¹, does not apply to risks arising from defects existing at the commencement of the employment, ‘but only to risks subsequently arising.’ The jury were directed to return a verdict for the defendants, ‘and by consent of the parties' the case was reported ‘for determination by the full court, with the stipulation that, if my ruling was correct, judgment is to be entered for the defendants with costs, and if my ruling was incorrect, judgment is to be entered for the plaintiff against the defendants James J. Danas and Charles Danas for the sum of two hundred dollars ($200) and costs.’

When St. 1909, c. 363, was enacted, it was the law in this commonwealth that, as to risks which arose subsequently to the time of employment, it was generally a question of fact for the jury whether the employé, knowing and appreciating the danger, voluntarily assumed it (Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464,31 Am. St. Rep. 537;Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366;O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N. E. 1119,47 L. R. A. 161); and in some cases the plaintiff was precluded from recovering, as matter of law, where he knew and appreciated the risk which came into existence after the employment began and voluntarily exposed himself to the danger (Goddard v. McIntosh, 161 Mass. 253, 37 N. E. 169;Larkin v. New York Central & Hudson River Railroad, 166 Mass. 110, 44 N. E. 122;Tenanty v. Boston Manuf. Co., 170 Mass. 323, 49 N. E. 654;Davis v. Forbes, 171 Mass. 548, 51 N. E. 20,47 L. R. A. 170). It had also been decided, where a machine upon which a servant is employed becomes dangerous or defective, and he complains of the defect and is promised it will be remedied, but is injured before it is remedied and while he is reasonably expecting the promise to be performed, that the promise is a circumstance to be considered by the jury in deciding whether he has assumed the risk in the meantime. Under this rule it was essential for the plaintiff to show that he continued at work in reliance upon the promise to repair. Counsell v. Hall, 145 Mass. 468, 14 N. E. 530;Lewis v. New York & New England Railroad, 153 Mass. 73, 26 N. E. 431,10 L. R. A. 513;Lamson v. American Axe & Tool Co., 177 Mass. 144, 58 N. E. 585,83 Am. St. Rep. 267;Daily v. Fiberloid Co., 186 Mass. 318, 71 N. E. 554. See Lynch v. M. T. Stevens Sons Co., 187 Mass. 397, 73 N. E. 478;Gregory v. American Thread Co., 187 Mass. 239, 72 N. E. 962. The statute was enacted to remedy the wrong thought to exist in the law; it took away the defense of the assumption of the risk arising from dangers or defects which came into existence subsequently to the contract of service, if reported as required by the statute. As to such defects it was no longer a question of law or a question of fact whether the employé assumed the risk, the statute entirely abolished this defense, when defects were properly reported, both at common law and under the Employers' Liability Act. R. L. c. 106, §§ 71-79. Nor was the employé, under this statute, required to show there was a promise to repair the defective appliance or that he relied on this promise; if the defect complained of was not remedied within a reasonable time no question of the assumption of the risk was involved.

It was well understood that there was also a contractual assumption of the risk-an implied agreement to take the risk of conditions which were obvious, open and plain to be seen, and existing at the time the employment began. And although it is generally said that the employé assumes the risk of such conditions ‘it is more accurate however to say that an employer is under no duty to an employé to change the obvious condition of the building in which the employé accepts employment.’ Shannon v. Willard, 201 Mass. 377, 380, 87 N. E. 610. The duty of the master applies not only to the machinery and appliances, but also to the way or method in which the employer's work was carried on. The employer had the right to carry on his business in his own way, although the machinery and appliances in use might be improved and a safer method adopted. In such cases there was no negligence in continuing conditions as they were when the contract was made, and there was no legal duty resting on the employer to change these conditions or to make them safer, even if they could be found to constitute defects. When an employé was injured, the burden was not upon the defendant to show that the plaintiff's injury came from a danger he contracted to assume, the burden was upon the plaintiff to show that he was not injured by reason of such danger, see Cullalucca v. Plymouth Rubber Co., 217 Mass. 392, 104 N. E. 956, and cases cited, and that his injury resulted from the employer's breach of duty.

‘So far as risks are obvious pertaining to the apparently permanent features of the business as it is openly conducted, an employer has a right to believe that his employe agrees to assume them * * * and the employer cannot be held guilty of negligence in failing to make provision against them.’ Murch v. Wilson's Sons & Co., 168 Mass. 408, 411, 47 N. E. 111.

That no duty was upon the employer to change existing conditions, and that there was a contractual assumption of the risk arising from them, see Fitzgerald v. Connecticut River Paper Co., supra; Mahoney v. Dore, supra; O'Maley v. South Boston Gaslight Co., supra; Gleason v. New York & New England Railroad, 159 Mass. 68, 34 N. E. 79;Content v. New York, New Haven & Hartford Railroad, 165 Mass. 267, 43 N. E. 94;Kenney v. Hingham Cordage Co., 168 Mass. 278, 47 N. E. 117;Wood v. Tileston, 182 Mass. 449, 65 N. E. 810;Arnold v. Harrington Cutlery Co., 189 Mass. 547, 76 N. E. 194;Burke v. Davis, 191 Mass. 20, 76 N. E. 1039,4 L. R. A. (N. S.) 971, 114 Am. St. Rep. 591;Butler v. Frasee, 211 U. S. 459, 29 Sup. Ct. 136, 53 L. Ed. 281. On the other hand, an obligation was assumed by the master to use proper care in providing and keeping the machinery and appliances in the same condition they were in, or appeared to be in, at the time of the employment; and although in some respects this duty might be delegated, under such circumstances it was generally a question of fact for the jury whether the servant assumed the risk. Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574,4 Am. St. Rep. 348;Murphy v. Marston Coal Co., 183 Mass. 385, 67 N. E. 342.

The statute we are considering did not abolish every assumption of the risk; the words of...