118 Mass. 251 | Mass. | 1875
In actions of this description, the questions whether the plaintiff was himself in the exercise of due care, and the defendants’ act negligent, whether the injury suffered was due to that act, as well as the amount of damage to the plaintiff, are, as a general rule, practical questions of fact to be settled by the knowledge and experience of the jury. The defendants’ liability depends upon circumstances which, as the cases arise, are of infinite variety and combination. If there is any evidence upon which the jury may legally found a verdict for the plaintiff, that verdict cannot be disturbed on exceptions as matter of law, unless there has been some error in the conduct of the trial, or the judge has failed to state the true test of liability in his instructions as applied to the facts disclosed.
Under the instructions given in the present case, the jury must have found that the injury of the plaintiff was caused by neglect or want of ordinary care on the part of those who, as agents and servants of the defendants, had charge of the tug-boat; and that this negligence consisted in not using such care in its navigation and management as persons of ordinary prudence would use under circumstances of like exposure and danger. They must have also found that the plaintiff was himself in the exercise of due care in attempting to escape the peril to which he was exposed by the defendants’ conduct, and that his injury was therefore due solely to the defendants’ negligence. The evidence reported justifies these findings. The structure upon which the plaintiff was at work was imperfect and out of repair. Its condition at the time, the plaintiff’s exposed position upon it, and the knowledge of that exposure which those in charge of the boat had, or in the exercise of due care might have had, were elements affecting the question of the defendants’ negligence to which the attention of the jury was especially called. It cannot be said, as matter of law, that the jury might not properly find it obviously probable ♦hat injury in some form would be caused to those who were at
A majority of the court are of opinion that there was no error in refusing to give the specific instructions requested; and that, so far as they contain correct propositions of law applicable to the facts presented, they appear to have been given. The court was not bound to adopt the precise language of the request. As to the second and sixth, it is enough to say that there is no role of law which exempts one from the consequences of his negligent conduct upon proof that he proceeded in the usual manner and took the usual course pursued by parties similarly situated, although he was without notice that he could not safely do so. The defendants cannot protect themselves by proving the careless practices of others, and the circumstances here were such as to justify the inference that the defendants were bound to take notice of the danger.
The third and fourth requests improperly made the plaintiff’s right to recover wholly dependent on the fact that notice to the defendants had been given by the parties in charge of the work, that the fender was not in proper condition for use, although there was evidence that the men on the tug saw the workmen on the bridge and the danger to which they were exposed in time to have prevented the injury.
The seventh and eighth are in effect requests for instructions that the defendants were not liable if they used ordinary care, and this rule was given to the jury, as we have seen.
Exceptions overruled.
