155 Mass. 155 | Mass. | 1891
There was evidence proper for the consideration of the jury on the question whether the defendant corporation was negligent in permitting the steps on which the plaintiff was injured to be slippery and dangerous. It was its duty to provide on its premises a reasonably safe passageway for the use of its employees in going to and from their work.
There was evidence that fifty women working in the same room with the plaintiff used the steps daily; and it was a question of fact for the jury whether the plaintiff was in the exercise of due care in trying to go down the steps as she did at the time of the accident. The fact that she knew them to be icy, and more or less slippery and dangerous, does not require us to hold, as matter of law, that she was negligent in trying to go down them, holding by the rail, — especially if she had no other way of getting from the mill.
The ground on which the ruling for the defendant was made was doubtless that the plaintiff, knowing the icy condition of the steps, assumed the risk of accident, and thereby precluded herself from recovering.
It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader general application, and which is expressed in the maxim, Volenti non fit injuria. The reason on which it is founded is, that, whatever may be the master’s general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is.
In the present ease, it does not appear that the steps were icy, or that there was any reason to suppose that the business involved a risk in regard to them, when the plaintiff entered the defendant’s service. It cannot be held that when she made her
The doctrine, Volenti non fit injuria, has not been very much discussed in the cases in this Commonwealth, but it is well established in the law, and it has been repeatedly recognized by this court. Horton v. Ipswich, 12 Cush. 488. Wilson v. Charlestown, 8 Allen, 137. Huddleston v. Lowell Machine Shop, 106 Mass. 282. Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79. Yeaton v. Boston & Lowell Railroad, 135 Mass. 418. Scanlon v. Boston & Albany Railroad, 147 Mass. 484. Wood v. Locke, 147 Mass. 604. Mellor v. Merchants’ Manuf. Co. 150 Mass. 362. Lewis v. New York & New England Railroad, 153 Mass. 73. Miner v. Connecticut River Railroad, 153 Mass. 398. In England it has been much discussed, and the difficulties in the application of it have frequently been considered by the courts. The rule of law briefly stated is this. One who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure. It has often been assumed that the conduct of the plaintiff in such a case shows conclusively that he is not in the exercise of due care. Sometimes it is said that the defendant no longer owes him any duty; sometimes, that the duty becomes one of imperfect obligation, and is not recognized in law. In one form or another the doctrine is given effect, as showing that in a case to which it applies there is either no negligence towards the plaintiff on the part of the defendant, or a want of due care on the part of the plaintiff.
In Thomas v. Quartermaine, 18 Q. B. D. 685, Bowen, L. J. says: “ The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognizant of the full extent of the danger, and voluntarily run the risk.” It would be unjust that one who freely and voluntarily assumes a known risk for which another is, in a general sense, culpably responsible, should hold that other responsible in damages for the consequences of his own exposure. In Yarmouth v. France, 19 Q. B. D. 647, Lord Esher, Master of the Rolls, expresses the opinion that in such a case
It may be said that the voluntary conduct of the plaintiff in exposing himself to a known and appreciated risk is the interposition of an act which, as between the parties, makes the defendant’s act, in its aspect as negligent, no longer the proximate cause of the injury; or at least is such participation in the defendant’s conduct as to preclude the plaintiff from recovering on the ground of the defendant’s negligence. Certainly it would be inconsistent to hold that a defendant’s act is negligent in reference to the danger of injuring the plaintiff, and that the plaintiff is not negligent in voluntarily exposing himself when he understands the danger. It is to be remembered that, in determining whether a defendant is negligent in a given case, his duty to the plaintiff at the time is to be considered, and not his general duty, or his duty to others. Therefore, when it appears that a plaintiff has knowingly and voluntarily assumed the risk of an accident, the jury should be instructed that he cannot recover, and should not be permitted to consider the conduct of the defendant by itself, and find that it was negligent, and then consider the plaintiff’s conduct by itself, and find that it was reasonably careful.
But this principle applies only when the plaintiff has voluntarily assumed the risk. As is said by Bowen, L. J., in Thomas v. Quartermaine, ubi supra, the maxim is not Scienti non fit injuria, but Volenti non fit injuria. The chief practical difficulty in applying it is in determining when the risk is assumed voluntarily. In the first place, one does not voluntarily assume a risk who merely knows that there is some danger, without appreciating the danger. On the other hand, he does not necessarily fail to appreciate the risk because he hopes and expects to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture. Sometimes the circumstances may show, as matter of law, that the risk is understood and appreciated; and often they may present in that particular a question of fact for the jury.
In Sullivan v. India Manuf. Co. 113 Mass. 396, is the following language: “ Though it is a part of the implied contract between master and servant, (where there is only an implied contract,) that the master shall provide suitable instruments for the servant with which to do his work, and a suitable place where, when exercising due care himself, he may perform it with safety, or subject only to such hazards as are necessarily incident to the business, yet it is in the power of the servant to dispense with this obligation. When he assents therefore to occupy the place prepared for him, and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it
In this Commonwealth, as well as elsewhere, plaintiffs have been precluded from recovering, alike where their assumption of the risk grew out of an implied contract in reference to the condition of things at the time of entering the defendant’s service, and where they voluntarily assumed a risk which came into existence afterwards. Huddleston v. Lowell Machine Shop, 106 Mass. 282. Pingree v. Leyland, 135 Mass. 398. Moulton v. Gage, 138 Mass. 390. Taylor v. Carew Manuf. Co. 140 Mass. 150. Gilbert v. Guild, 144 Mass. 601. Murphy v. Greeley, 146 Mass. 196. Wood v. Locke, 147 Mass. 604. Mellor v. Merchants' Manuf. Co. 150 Mass. 362. Lothrop v. Fitchburg Railroad, 150 Mass. 423. Lewis v. New York & New England Railroad, 153 Mass. 73. Miner v. Connecticut River Railroad, 153 Mass. 398.
This court has recognized the doctrine that mere knowledge of a danger will not preclude a plaintiff from recovering unless he appreciates the risk. Linnehan v. Sampson, 126 Mass. 506. Lawless v. Connecticut River Railroad, 136 Mass. 1. Williams v. Churchill, 137 Mass. 243. Taylor v. Carew Manuf. Co. 140 Mass. 150. Ferren v. Old Colony Railroad, 143 Mass. 197. Scanlon
We are of opinion that it cannot be said, as matter of law, that the plaintiff in the present case, in attempting to go down the steps, voluntarily assumed a risk which she understood and appreciated, and which resulted in the accident. She knew that the steps were icy, and that there was some danger in passing over them. But the evidence tended .to show that their condition in regard to slipperiness was constantly changing in different states of the weather, with the spray falling daily from the steam-pipe and freezing upon them. Common experience tells us that the degree of slipperiness of ice is not always determinable from an ocular inspection of it. If it were certain that the extent of the danger was obvious to one who saw the surface of the steps, the case would be different.
Besides, there was evidence tending to show that she had no way of leaving the defendant’s mill except by going down the steps, and that was important to be considered in deciding whether she took the risk voluntarily.
We are of opinion that the case should have been submitted to the jury. Exceptions sustained.