207 Mass. 545 | Mass. | 1911
The plaintiff’s intestate was an experienced teamster in the employ of the defendants. There was evidence from which it might have been found that about a week before his injury the plaintiff’s intestate showed to a superintendent of the defendants a strap used for binding a load, calling attention to its weakness. The latter, after examination of the strap, said, “ That will hold all the load you ever put on your wagon.” About? a week later, while the plaintiff’s intestate was pulling hard to tighten the strap around his load, it broke, he fell into the street between the wheels of a passing wagon, and received fatal injuries. The street was adjacent to the great market in Boston, and was lined with teams on each side, leaving space enough between so that there was no blockade.
1. It is urged that the plaintiff’s intestate was not in the exercise of due care, for the reason that he braced one foot upon the wheel of his wagon in order the better to tighten the strap around some barrels, knowing its weakened condition, and pulled upon it hard in such a position that he must have foreseen that if it gave way he would be likely to fall under the heavy wagon which he saw approaching. He had spoken of deterioration in
2. Whether the deceased assumed the risk by voluntarily exposing himself to danger, after knowing the facts and having a full appreciation of their bearing upon his safety, was a question of fact. McKinnon v. Riter-Conley Manuf. Co. 186 Mass. 155. Frost v. McCarthy, 200 Mass. 445. O’Toole v. Pruyn, 201 Mass. 126. This aspect of the case is so interwoven with the inquiry as to due care in view of the assurance given by the defendants’ representative touching the strength of the strap as to stand upon the same ground. The defendants strongly rely upon Davis v. Forbes, 171 Mass. 548. Without impairing the authority of that case, it is distinguishable on the ground that the plaintiff there relied upon an exp'eriment performed in his presence to determine the soundness of the appliance, and not primarily upon the assurance given by the defendant. In Levesque v. Janson, 165 Mass. 16, there was apparently opportunity for
3. It was the duty of the defendants to furnish reasonably safe appliances. The fact that this strap broke, coupled with evidence that its worn condition had been especially called to the attention of the representative of the defendants, was sufficient to” make improper a ruling as matter of law that the defendants were not negligent. Burgess v. Davis Sulphur Ore Co. 165 Mass. 71. Shannon v. Willard, 201 Mass. 377. Whether the use being made of the strap at the time it gave way was within the line of duty of the deceased was for the jury. Hard pulling in order to tighten the binding of a load of barrels might have been found to be necessary.
Exceptions sustained.