| Mass. | Jan 15, 1871
From the nature of the case, it must happen that the subject of the liability of employer to his workman, who is accidentally injured while engaged in his service, will present itself to courts of law in a great variety of forms, for there are in almost every case some peculiar circumstances. The decisions are very numerous on this subject, both in this country and in England, but the general principles by which they are governed are well establishedP It is not necessary to advert tc the cases, for the principles are sufficiently stated in Gilman v. Eastern Railroad Co. 10 Allen, 233, and 13 Allen, 433.
The evidence in this case does not tend to show that the de fendants’ machine shop was not properly built, but it does tend
But in order to enable the plaintiff to recover, he must prove that he has not been careless or rash. In Priestley v. Fowler, 8 M. & W. 1, it is well stated, that “the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which damage may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.”
In this case, the evidence shows that the plaintiff had some knowledge of the condition of the floor. If it was sufficient to put him on his guard at the time, he cannot recover. But from the nature and condition of the building, and the nature of the defect, the court cannot say that the plaintiff could, without having examined the parts of the floor that were not exposed to his inspection, be aware that there was danger at the place where he broke through. If it would require an inspection of the under side of the floor, or of the parts of the building under it, to make him aware of the danger, then the injury might have happened fdthout his fault. The evidence on this point should be submitted to a jury, to determine, under proper instructions, whether he used due care at the time of the accident.
Case to stand for trial.