142 Mass. 316 | Mass. | 1886
It is not denied that, if Dodge was personally negligent in giving directions to the plaintiff in the performance of his work, and if the plaintiff used due care, both the defendants are liable. Ashworth v. Stanwix, 3 El. & El. 701.
As the plaintiff was of full age, and an experienced teamster, if the danger of driving the horses with the van under the gateway was well known to him, he cannot recover, although he was acting under the immediate personal direction of Dodge.
The principle is said to be, that, “ where the servant has as good an opportunity as the master of ascertaining and obviating the danger for himself, he will have no recourse against the latter.” Fraser’s Master and Servant (3d ed.) 176. See also Woodley v. Metropolitan District Railway, 2 Ex. D. 384; Ogden v. Rummens, 3 F. & F. 751.
From the testimony, it was competent for the jury to find that the defendant Dodge assumed the personal direction and control of the plaintiff in determining where the team should be driven, and that he was familiar with the practice of driving loaded vans under the gateway; that the plaintiff had never driven under the gateway before; that the danger was not obvious from the place where the plaintiff started his team, in any such sense that it was not a reasonable opinion from observation at this place that he .could drive through the gateway in safety; that the plaintiff’s attention was necessarily chiefly devoted to the management of the horses, and that he did not discover the danger until it was too late to save himself; and that the defendant had better means of observation, and of seasonably appreciating the danger, and either did not warn the plaintiff at all, or warned him when it was too late. On such findings, we cannot say that the plaintiff was not in the exercise of due care, or that the defendant was. The test is not only what each knew, but what each reasonably ought to have known, concerning the risk; and we cannot say that identically the same duty rested on the servant and on the master seasonably to ascertain the extent .of the danger involved in performing the work in the manner ordered by the master. If the master personally interferes in the performance of work, and, in consequence of this negligence, a servant is injured, the master is liable, unless the carelessness of the servant is a defence. Roberts v. Smith, 2 H, & N. 213.
This court has perhaps recognized that the servant may put some reliance upon the master, when he assumes control of the work and gives specific orders; and that there is not precisely the same obligation resting upon each to ascertain what the dangers are. In Coombs v. New Bedford Cordage Co. 102 Mass. 572, 585, although the case was decided on the ground that the servant was incapable of understanding and appreciating the danger to which he was exposed, and that the employer set him to work without properly instructing him in regard to his work, and the dangers attending it, the court say: “Some allowance should be made for his youth, his inexperience in the business, and for the reliance which he might have placed upon the direction of his employers.”
In Atlas Engine Works v. Randall, 100 Ind. 293, it is said, “ If the attention of the appellee had been, as in the Massachusetts case, withdrawn from the source of danger by the requirements of his employment, the case would involve considerations which are conspicuously absent.”
Keegan v. Kavanaugh, 62 Mo. 230, is the case of a hod-carrier, who, in obedience to a positive order of his master, went down to build a stone wall at the foot of an embankment of earth, which was not shored or propped up, and which fell upon the plaintiff. The court say, “ If the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk; ” but that “ the superior information of the master was relied on, and his better means of information
In Lee v. Woolsey, 110 Penn. St. , it is said, “If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it.”
The plaintiff in this case was an experienced teamster, but he may not have had the same experience as the defendant Dodge of the possibility of driving the loaded van safely under the gateway. The more important matter is, however, that he might not have had the same opportunity of estimating the danger, and from the nature of his employment he was required to devote his attention principally to the management of his horses, while his master had assumed the responsibility of directing where the plaintiff should drive, and was free to observe carefully all the dangers which the plaintiff might incur in executing his orders. We think that the requests for instructions were properly modified by the consideration of the fact that the plaintiff was acting in the presence and under the directions of one of the defendants, who was his master. If the charge in this respect is not so definite as might be desired, it was not erroneous or misleading.
Exceptions overruled.
