Woodman v. Metropolitan R. Co.
| Decision Date | 31 May 1889 |
| Citation | 149 Mass. 335,21 N.E. 482 |
| Parties | WOODMAN v. METROPOLITAN R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, Jr., and M. Morton, Jr., for plaintiff.
M.F Dickinson, Jr., and G.D. Braman, for defendant.
The plaintiff's testator was injured by a fall in the street. He was seen to fall, and was picked up senseless at a point where some rails projected beyond a temporary barrier inclosing a place where the defendant was having a track laid. There was no evidence of any other possible cause of the fall. This warranted a finding that he tripped over the end of the rails.
The street was a public highway, and the jury very properly might find that it was negligent to allow the ends of the rails to project beyond the barrier, especially if they believed that it was dark at the place, as one witness testified, although the weight of the testimony looks the other way on paper. There was testimony that the plaintiff was walking in the usual way just before he fell. Taking into account what he had a right to assume with regard to that part of the street which was not inclosed with barriers, the jury was warranted in finding that he was using due care. Lyman v. Hampshire, 140 Mass. 311, 314, 3 N.E. 211; Learoyd v. Godfrey, 138 Mass. 315, 324. Indeed, if they believed that it was dark, they might have considered that the plaintiff had been led into a trap. It is suggested that he was not crossing at a regular crossing. But his rights were not changed by a slight change in the pavement. He had a right to cross where he chose, if the jury thought he used due care. Raymond v. Lowell, 6 Cush. 524; Gerald v. Boston, 108 Mass. 580.
It is argued that the work was done by an independent contractor. Assuming that there was evidence warranting that conclusion we are of opinion that the fact would not exonerate the defendant. In some cases, a party is liable, notwithstanding the intervention of an independent contractor, lawfully employed. A plain case is when he is made personally responsible by statute for the prevention of the cause of the damage complained of. Gray v. Pullen, 5 Best & S. 970. Thus it is settled in many states that a city charged with the duty of keeping the streets in repair is answerable for an improperly guarded excavation made by a contractor, for instance, in building a sewer. Storrs v. Utica, 17 N.Y. 104; Detroit v Corey, 9 Mich. 165; Birmingham v. McCary, 84 Ala. 469, 4 South.Rep. 635; Logansport v. Dick, 70 Ind. 65; Railroad Co. v. Meador, 50 Tex. 77; Circleville v. Neuding, 41 Ohio St. 465, 469; Baltimore v. O'Donnell, 53 Md. 110; Robbins v. Chicago, 4 Wall. 657, 679; Water Co. v. Ware, 16 Wall. 566. In the present case it would not stretch the words of the public statute and of the defendant's charter very much to say that such a personal duty was imposed upon it. Pub.St. c. 113, § 32; St.1853, c. 353, § 3. See Quested v. Railroad Co., 127 Mass. 204; Osgood v. Railroad Co., 130 Mass. 492; Brookhouse v. Railway Co., 132 Mass. 178; Braslin v. Railroad Co., 145 Mass. 64, 13 N.E. 65. But, further, apart from statute, if the performance of a lawful contract necessarily will bring wrongful consequences to pass, unless guarded against, and if as in the present case the contract cannot be performed except under the right of the employer who retains the right of access to the premises, the law may require the employer at his peril to see that due care is used to prevent harm, whatever the nature of his contract with those whom he employs. Sturges v. Society, 130 Mass. 414; Stewart v. Putnam, 127 Mass. 403, 407; Gorham v. Gross, 125 Mass. 232, 240; Bower v. Peate, L.R. 1 Q.B.Div. 321, approved in Dalton v. Angus, L.R. 6 App.Cas. 740, L.R. 4 Q.B.Div. 162, L.R. 3 Q.B.Div. 85; Pickard v. Smith, 10 C.B.(N.S.) 470; Hole v. Railway Co., 6 Hurl. & N. 488, 500; Circleville v. Neuding, ubi supra. Laying the track for the defendant necessitated the digging up of the highway, and the obstruction of it with earth and materials. This obstruction would be a nuisance, unless properly guarded against. The work was done under a permit...
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