167 Mass. 225 | Mass. | 1897
This case is not unlike Young v. Miller, ante, 224, in its facts, except that here the plaintiff testified that she did not know of the trap door. Her testimony is hard to believe, no doubt, as she passed over the door many times a day, and as the wheels of her bobbin box probably jolted as they went over its hinges, but we cannot say that she must have known of it. She may have been unusually absent-minded. Again, it does not follow from the fact that she took the risk of dangers permanently incident to the visible permanent'structure. (Gleason v. New York & New England Railroad, 159 Mass. 68) that she must be assumed actually to have known of every detail of the structure, and therefore to have known of the trap door and the possibility of its being tipen once in a while. Thus it will be seen that the case is stronger than Young v. Miller, and notwithstanding the decision in that case, which was very near the line, a majority of the court are of opinion that a j ury might
It is argued for the defendant, that the request had reference to the declaration, and that the declaration only charges an improper structure. Possibly, if attention had been called to it, that would have been the interpretation, but if it had been read so narrowly, and anything had been understood to depend on it, probably the plaintiff would have amended. Although the verb used is “ maintained,” the object is “ trap and opening,” and undoubtedly the plaintiff meant to charge the defendant with negligently keeping the opening at the moment of the accident. The plaintiff had conceded that there was no defect in the ways, works, or machinery. As the action was at common law, this fairly would have been understood by the judge to mean that there was no permanent defect in the structure. We must assume that the case was tried and went to the jury on the question whether there was negligence in regard to the hole at the moment of the accident, and that the judge was warranted in supposing that to be the issue which the parties meant to try. If the defendant intended to cut off that issue by reason of the form of the declaration, it should have called attention to it.
From what we have said it will be seen' how we must deal with the second request. No doubt it was capable of an interpretation like the stricter interpretation of the count. But so interpreted the proposition was admitted, and the refusal of the judge must have been based on the obvious possibility that it might be understood to mean more. In view of the plaintiff’s admission, it probably would have been taken to mean that there was no negligence on the defendant’s part at the moment of the accident in having no signal of danger or protection at the trap, even as towards persons who did not know that the trap door was there. That was a question for the jury.
Exceptions overruled.
