Coughlin v. Boston Tow-Boat Co.

151 Mass. 92 | Mass. | 1890

Holmes, J.

The second'count of the declaration alleges that the defendant was “ the owner of, and had the management and control of, a certain vessel,” on a certain day; that the plaintiff “ was then and there at work on said vessel ... as a laborer, . . . shovelling coal,” and “ discharging the cargo,” etc.; and that he “ was then and there in the employ of one White, a stevedore then doing the work of discharging the said cargo of said vessel.” We are of opinion that, upon a general demurrer not pointing out any specific defect, the foregoing allegations must be taken to mean that White was doing the defendant’s work, and discharging the cargo in the course of business, and that he and the plaintiff were lawfully there in pursuance of an arrangement of some kind between the defendant and White. The language quoted, taken in its natural meaning, is not equally consistent with White’s being a trespasser, or with the possibility that he and the plaintiff were engaged in stealing coal. We do not construe declarations quite so adversely nowadays as indictments were construed a hundred years ago.

The defendant does not deny that, if the declaration is read as we read it, it discloses a duty to the plaintiff. If a stevedore is employed to discharge a cargo, the laborers whom he employs are within the scope of the invitation to come upon the vessel, irrespectively of the relation of master and servant, or of privity of contract. Stewart v. Harvard College, 12 Allen, 58.

It is now settled that the St. of 1887, c. 270, does not take away the common law right of action. Ryalls v. Mechanics’ Mills, 150 Mass. 190.

Demurrer overruled.