153 Mass. 398 | Mass. | 1891
Under the instructions which were given to the jury, they must have found that Gourley was rightfully in the
The principal point raised by the bill of exceptions is, whether the defendant was entitled to have an instruction given to the jury, in substance, that, if Gourley knew the situation and the danger, and voluntarily assumed the risk, then the plaintiff could not recover.
There can be no doubt that there are cases where the principle which is often expressed by the maxim, Volenti non fit injuria, will have the effect to debar one from a remedy which might otherwise be open to him.
This principle was recently applied by this court in a case where the plaintiff, who was employed in a mill, volunteered to make certain repairs of machinery which it was no part of his regular duty to make, understanding perfectly what the defect was, and what might happen from it, and was hurt. It was held that he took the risk. Mellor v. Merchants' Manuf. Co. 150 Mass. 362.
In the present case there was no relation of master and servant existing between the defendant and Gourley. Gourley was employed by the plaintiff’s husband to take the plaintiff’s team and go to Springfield for a load of grain, and was directed by the vendor to go to the defendant’s freight yard, and was told the number of the car containing the grain. While he was in the freight yard, the accident happened by which the plaintiff’s horse was killed. There was evidence tending to show that Gourley knew and appreciated the danger, before entering the freight yard, and took the horse by the head and led it in. The testimony of Mesick, on cross-examination, tended to show that Gourley might have had the car moved to another place before being unloaded.
Independently of any relation of master and servant, there may be a voluntary assumption of the risk of a known danger, which will debar one from recovering compensation in case of injury to person or property therefrom, even though he was in
Ordinarily, in actions to recover damages for injuries to person or property, an instruction as to the effect of contributory negligence on the part of the plaintiff will cover all that need be said to the jury upon this branch of the case. But the principle that one may be debarred from a recovery when he voluntarily assumes the risk is not identical with the principle on which the doctrine of contributory negligence rests, and in proper cases this ought to be explained to the jury. One may with his eyes open undertake to do a thing which he knows is attended with more or less peril; and he may, both in entering upon the undertaking and in carrying it out, use all the care he is capable of. But whether or not he thereby assumes the risk may depend on other circumstances. One may without fault of his own be in a situation where he must choose a perilous alternative. The degree of danger, the stress of circumstances, the expectation or hope that others will fully perform the duties resting on them, may all have to be considered.
There has been some discussion in recent English cases upon the question, under what circumstances, or in what state of mind, one must be in order to make it proper to find that he voluntarily assumed a risk, or that he was volens, within the meaning of the maxim. Membery v. Great Western Railway, 14 App. Cas. 179, 186. Thrussell v. Handyside, 20 Q. B. D. 359. Yarmouth v. France, 19 Q. B. D. 647. We have no occasion to enter nicely into that question here, or to undertake to define the limits of the application of the doctrine, because it was not dealt with at the trial. The defendant asked for a ruling that the plaintiff could not recover if Gourley knew of the danger and voluntarily assumed the risk. The court wholly omitted to deal with this aspect of the case, except by giving instructions in reference to contributory negligence.
We have not to consider whether, upon the evidence, the defendant was entitled to prevail on this ground, but only whether it was entitled to go to the jury upon it. In the opinion of a majority of the court, there was sufficient evidence for this pur
A question of evidence remains. With a view to reduce the damages, the defendant sought to show what the horse had cost two years before the accident, it being six years old at the time of the accident; but the evidence was excluded. Without considering the question whether the price paid for a horse at private sale is competent evidence of its value at or about the time of the purchase, it was clearly within the discretion of the court, in the present case, to exclude the evidence as too remote.
Exceptions sustained.
