250 Mass. 485 | Mass. | 1925
This is an action of tort for personal injuries, sustained by the plaintiff while engaged in the employment of the defendant. The defendant was not insured under the workmen’s compensation act. At the close of the evidence, the defendant moved that a verdict be directed for him upon all the evidence. This motion was denied by the trial judge and the defendant duly excepted.
It further appeared in evidence that just before the accident the platform and floor were more slippery than they were at seven o’clock; that it was more difficult in walking from the dough mixing machine to the bench and back again at that time than at the beginning of the evening; that at the time of the accident the plaintiff was standing on the platform in front of the dough mixing machine; that there was a bag of flour standing near; that he took some flour in his hands from this bag and spread it over the dough; that he did this twice; that “ then the third time,” as the plaintiff described the sequence of events, “ I took some flour from the bag in my hand and intended to spread it over that dough in the machine when I slipped, and when I slipped one of my hands fell in the side of the machine and cut my finger off.” The defendant contradicted the statement of the plaintiff that he made complaint as to the condition of the floor, and testified that the floor “was never wet”; that the “floor of the shop was dry”; that “at the time the accident happened the floor was clean and dry ”; and that “ the platform was dry.”
It is evident it does not lie in the mouth of the defendant to contend that the plaintiff contractually assumed the risk of a physical condition of the premises which he denies existed when the plaintiff entered the employment of the defendant. The plaintiff’s action in continuing to work in the shop of the defendant with full knowledge of the dangerous and unsafe condition of its floor and of the platform of the machine, after his complaint and the refusal of the defendant to do anything to make the floor reasonably safe, is not a defence to the defendant who was not insured under the work
In cross-examination the defendant testified that he knew a lawyer named Joseph Bearak; that he was in his office once; that he met Garber there; that he was in Bearak’s office with Garber and Simon Bennett about four months after the accident; that Bearak was not the defendant’s attorney; that a friend asked him to go to see Bearak and that he met Garber there. The defendant was then asked, “Did Mr. Garber say to you on that day that he had been injured by reason of his foot slipping on the platform near the dough mixing machine?” The defendant objected to this question on the ground that “they were talking over compromise with this plaintiff and therefore all matters considered then are not admissible.” The objection was overruled and the defendant duly excepted. The defendant was then allowed to answer “No,” and to testify further that nobody said anything to him in that office about how the accident happened. To all of this conversation the defendant duly excepted.
Joseph Bearak, after testifying that he had a talk with both of them in his office, was asked “ At that time in the course of the conversation did you hear Garber say anything in reference to how the accident happened, in Levine’s presence? ” The defendant duly objected upon the ground that the conference was for the purpose of talking over a compromise in this matter. The judge required the answer to be given, on the ground that the plaintiff might argue from the expected answer “ that the claim that the plaintiff makes with reference to having the foot slip is not a new claim,” and also on the ground that it would contradict the testimony of the defendant. The witness then answered “ Garber said, as near as I can remember, that the platform was wet and muddy with dough and it gave way from under him; I don’t remember he said which foot gave way first, but he said he slipped.” On cross-examination the witness testified that the appointment at his office was arranged by Clarence Richmond; that he represented the defendant; that
In the circumstances it is entirely clear that the evidence of what Garber said and that the defendant made no reply thereto should have been excluded on ground of public policy, the policy of encouraging peaceful out-door adjustment of cases and causes of litigation. Dickinson v. Dickinson, 9 Met. 471, 474. Harrington v. Lincoln, 4 Gray, 563. Johnson v. Trinity Church Society, 11 Allen, 123. Wigmore on Ev. (2d ed.) § 1061. Molyneaux v. Collier, 13 Ga. 406, 415. White v. Old Dominion Steamship Co. 102 N. Y. 660, 662. It indisputably appears that the plaintiff and defendant met at the office of a disinterested attorney to settle and compromise their differences, in the faith that what was then said, could be said without prejudice and without fear that what was said might subsequently be introduced in evidence as admissions against the one party or the other. In the case at bar it is to be noted that the defendant made no statement of fact; and made no admission of fact, unless an admission of the truth of the statement of the plaintiff resulted from the fact that the defendant said nothing in reply thereto. It is further to be observed that the statement of the plaintiff concerned vital elements in the proof of his case, and in no wise could be said to relate to facts which were collateral to the subject matter of the conference.
Exceptions sustained.