195 Mass. 399 | Mass. | 1907
The plaintiff was injured while driving the defendant’s team on a coal wharf, in passing from the main driveway to one side into a coal shed to get a load of coal. He was sitting on the seat of a two-horse wagon which seat was about six feet and an inch above the ground. The height of the doorway through which he was passing into the shed was eight feet ten and one half inches, leaving two feet and nine inches between the top of his seat and the frame of the doorway. There was a dispute between the parties as to the condition of the doorway in other particulars; but if we take the testimony that was most favorable to the plaintiff, there was a piece of board or plank which was a part of the construction of a chute that formerly had been used there, and this piece, which was fastened above by a bolt swivel, was accustomed much of the time, according to the position in which it chanced to be, to hang so as to extend downward from half an inch to three inches below the top of the doorway. The plaintiff testified, as did also witnesses for the defendant, that “ on the under side of the main beam there is a bolt fastened to the beam projecting about half an inch below the under side ” of it. The defendant’s witnesses
It is of little consequence to this case which part of the testimony is correct, for the plaintiff testified that he “ could not say how long this piece had been there; it apparently was there from the time that they had used hard coal in the shed years ago. It was certainly there when he came there.” He also testified that he “could not say exactly how high the door was. He could not go under there without ducking. He always bent in case of anything happening anyway. . . . He never had tried to go through there sitting upright.” He had been employed by the defendant about sixteen months and was accustomed to drive through this doorway frequently. It appears from his own testimony that, if the portion of the old chute was there at the time of the accident, it was there when he entered the defendant’s employment and constituted one of the open and obvious risks of the business in reference to which he made his contract for service. It has been held in a great many cases that an employer owes his servants no duty to change obvious conditions in the construction and arrangement of his place of business, which existed when the contract of employment was made. Murch v. Thomas Wilson’s Sons, 168 Mass. 408. Gleason v. Smith, 172 Mass. 50. Nealand v. Lynn Boston Railroad, 178 Mass. 42. The testimony of the plaintiff indicates that the accident was caused by his neglect to lower his head sufficiently in passing through the door, under conditions with which he had long been familiar.
There was no evidence that negligence of the defendant in regard to the ice caused the accident. By the great weight of the evidence, including that of the plaintiff himself, there was no ice there that could have affected the movement of the wagon in the slightest degree. If there was ice near the entrance to the shed, as was testified by a single witness, Cartwright, which as he said, “ had been there for weeks,” it could not be found that, with the work going on and heavy teams passing over the place many times a day, there was any such danger of its causing an accident of this kind as to warrant a finding that the defendant was negligent in failing to remove it. Nor was there any evidence that it caused the plaintiff’s accident. The plaintiff
It is not contended that the defendant was negligent in regard to the lights upon the wharf. It provided a good and sufficient system of lighting for the convenience of its employees. If there was failure to light the lamps promptly when darkness approached, it was the fault of the plaintiff’s fellow servants.
The judge, in his discretion, rightly excluded the statements of O’Brien, a witness called by the plaintiff in rebuttal. His testimony should have been introduced in the beginning, as a part of the plaintiff’s case.
Exceptions overruled.