153 Mass. 73 | Mass. | 1891
The plaintiff contends that there was evidence which would have justified the jury in finding that the rotten and defective condition of the pier which caused the accident was due to the negligence of the defendant, and in this we think he is right. He also contends that there was evidence to go to the jury that he was himself in the exercise of due care, and continued in the defendant’s service, relying upon assurances given by one of its general superintendents that the pier would be repaired. In this, however, we cannot agree with him.
The plaintiff was superintendent of the defendant’s drawbridge over Fort Point Channel in Boston. He had held that position between three and four years prior to the accident. Connected with and forming a part of the drawbridge was a pier which was planked over. While running quickly along this pier in the discharge of his duty, for the purpose of catching a line from a vessel that was going through the draw, the plaintiff broke through a rotten place in the planking, and was injured in one knee so as to be permanently disabled. He testified that, though there were some holes covered with plank, the surface of the pier “ looked as fair ” as the board in front of the witness stand, “ but it was decayed, it must have been dreadfully decayed underneath, and a great many places were the same. Almost anywhere you see, it would look very fair, and you would go down through if you didn’t look out.” He also testified that a few days before the accident he had a conversation with Bent, one of the defendant’s general superintendents, and told him that “ the pier was in a very bad condition indeed,” and “ that strangers would be apt to fall through there ; not knowing where to go, they will be apt to step on to some place and get hurt, and we don’t want them to get hurt ”; and “ I told him it was in very bad condition, and ought to be seen to before people got hurt; says I, ‘ There is a number that have fell, through here, and somebody is going to get badly hurt.’ ” In answer to the question
The plaintiff contends that he complained to the superintendent, Bent, of the condition of the pier; that the superintendent promised a few days before the accident to repair it; and that, relying on that promise, he continued in the discharge of his duty, and was injured because the pier was not repaired. It is a question how far and under what circumstances a servant, the performance of whose duties becomes dangerous through the neglect of his employer to keep in proper repair the premises where he works, is justified in relying upon his employer’s promise to amend the defect and remove the danger, when he himself has full knowledge of the defective and dangerous condition which exists, and of the risk which he runs by continuing in the service. This case, however, does not present that question. The plaintiff did not testify, and apparently would not testify, that he continued in the defendant’s employment because of the assurance of the superintendent that the pier would be repaired. Even when pressed by his counsel, he would not say that he complained to the superintendent on his own account of the bad condition of
The plaintiff seems to have called the attention of the superintendent to the condition of the pier, and to have urged its repair, not on his own account, nor because the discharge of his duties was rendered more dangerous, nor because he had any intention of leaving if the pier was not repaired. But he seems to have acted in the interests of the company, and in order to prevent strangers and others coming on to the pier, and, not knowing where to go, from getting hurt. The natural and reasonable im
We think, therefore, that the evidence shows either that the plaintiff was not in the exercise of due care, or that he had assumed the risk with full knowledge and appreciation of it, and the entry must be, Judgment on the verdict.