Murch v. Thomas Wilson's Sons & Co.

168 Mass. 408 | Mass. | 1897

Knowlton, J.

The chart room and the stove by which it was heated were a part of the permanent construction and arrangement of the steamship, and in all their details they were open to the observation of everybody who came upon that part of the ship. Such danger as there was from the use of them to one who engaged to act as pilot was an obvious risk of the business, which was covered by his contract to serve on that ship. Parties entering into a contract for service by one of them make their engagements in reference to the subject matter to which the contract relates, and their rights and liabilities depend upon the contract as applied to the subject with which they are dealing. The employee impliedly agrees to assume all the obvious risks of the business in which he contracts to work. Among these are the open, manifest dangers attendant upon the use of the ways, works, and machinery of a permanent character that are plainly intended to be retained as a part of' the plant to which the contract for service relates. It has often been held that an employer owes his employee no duty to change a business in these particulars in order to make it safer, even though in some parts his ways and works would not be deemed reasonably safe and proper if he were starting a new establishment to do the same kind of work under an arrangement with employees to serve in a business afterwards to be established. Ladd v. New Bedford Railroad, 119 Mass. 412. Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79. Coombs v. Fitchburg Railroad, 156 Mass. 200. O'Maley v. South Boston Gas Light Co. 158 Mass. 135. Fisk v. Fitchburg Railroad, 158 Mass. 238. Goodridge v. Washington Mills, 160 Mass. 234. Rooney v. Sewall & Day Cordage Co. 161 Mass. 153. Feely v. Pearson Cordage Co. 161 Mass. 426. Goodes v. Boston & Albany Railroad, 162 Mass. 287. Austin v. Boston & Maine Railroad, 164 Mass. 282. Content v. New York, New Haven, & Hartford Railroad, 165 Mass. 267. Sweeney v. Berlin & Jones Envelope Co. 101 N. Y. 520. Appel v. Buffalo, New York, & Philadelphia Railway, 111 N. Y. 550. Hayden v. Smithville Manuf. Co. 29 Conn. 548. Tuttle v. Detroit, Grand Haven, & Milwaukee Railway, 122 U. S. 189. So far as risks are obvious pertaining to the apparently permanent features of the business as it is openly conducted, an employer has a right to believe that his employee agrees to assume them. They are, therefore, no't included among those to be guarded against in the performance of his general duty to furnish reasonably safe appointments for the employee, and the employer cannot be held guilty of negligence in failing to make provision against them.

In the present case any one opening the door of the chart room would see at a glance that the products of combustion in the stove could not escape except into the atmosphere of the room. The plaintiff was furnished with a state room, and the chart room was not designed to be used as a sleeping room. Moreover, he was warned that a kind of fuel was used in the stove which might be dangerous,.and that it was necessary for safety to keep the door open a little way by the hook which was designed to hold it in that position. However much we may sympathize with the plaintiff in his misfortune, a majority of the court are of opinion that the defendant owed him no duty to change the construction of its chart room, or of the stove by which the room was heated, and that when he entered the service he voluntarily assumed the risk of such an accident as befell him.

It is not contended that there can be a recovery for the negligence of a fellow servant in closing the door, instead of fastening it a little way open by the hook.

Exceptions overruled.