Murphy v. City Coal Co., 172 Mass. 324

Murphy v. City Coal Co.

172 Mass. 324 | Mass. | 1899

Hammond, J.

1. The first request was rightly refused. The evidence, so far as disclosed in the report, tended to show that the defendant’s superintendent ordered the removal of the board obstructing the triangle before the car had passed over the fourteen feet of track in which, the pick-up operated, and while the plaintiff was in this dangerous space of the track ; and that “ upon his so doing, the triangle instantly fell, communicated power to the pick-up through this rope or cable, and caused the pick-up to advance upon the plaintiff, jamming him between it and the car, thus producing the injuries for which he complains ” ; and the jury would have been warranted in finding that this order' was negligent. Even if the liability of the pick-up to injure a person in the situation in which the plaintiff was when hurt was an obvious risk of the business assumed by the plaintiff, that rule was not applicable to the case if the jury found that the accident was caused by the negligent act of the superintendent. The risk which the workman assumes by virtue of his contract of employment does not include the risk arising from the negligent act of a superintendent. If it did, the purpose of the statute under which the case was submitted to the jury would be defeated. Malcolm v. Fuller, 152 Mass. 160, 167. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532, 536. McPhee v. Scully, 163 Mass. 216. Smith v. Baker, [1891] A. C. 325.

*328There being a possible phase of the case where the risk was not assumed by the plaintiff, the judge could not properly have given the ruling in the broad and unqualified form in which it was requested, and as it is stated in the bill of exceptions that “ Full general instructions appropriate to the case were given by the court to the jury, which were not excepted to otherwise than as herein appears,” we must presume that the jury were rightly instructed upon the subject.

2. In dealing with the second request, some embarrassment arises from the difficulty in ascertaining what it means. The counsel for the defendant in his brief seems to think that it should be interpreted as meaning in substance that, if the plaintiff of his own motion went outside the scope of his employment when he placed himself between the pick-up and the car, or, in other words, if the plaintiff in moving the car was a mere volunteer, he cannot recover.

But we do not think that is the fair and natural import of the language. The judge was justified in interpreting it, as he evidently did, as meaning that if, without waiting to ascertain why the pick-up did not work, the plaintiff of his own motion and without any direct command went from a place of safety to a position of danger in which he was hurt, he cannot recover; and hence he gave the instruction with the modification “ if he [the plaintiff] appreciated the danger, or in the exercise of reasonable diligence ought to have been aware of it.”

And this, we think, was correct. While the plaintiff had worked elsewhere in a similar employment for some years, he had begun to work on this job only a few hours before he was hurt. He testified that when, upon his application for employment, Witlierell asked him if he “ would run the car for him,” he replied in the negative, saying he “ did not understand running it.” The car which passed from the bins to the hopper end of the trestle just before this car was pushed to the hopper in the same way in which this was, and the plaintiff saw it done. It does not appear that anything was said by anybody against that act. This request bears only upon the question of the plaintiff’s due care. The jury may have found, upon all the evidence on this branch of the case, only a part of which is before us, that the plaintiff was warranted in thinking that *329whenever the pick-up did not move he was expected to push the car back, and that, so thinking, he went upon the trestle for that purpose. If that was his idea, then, so far as the question of his due care was concerned, he was not necessarily precluded from recovering, unless he appreciated the danger, or in the exercise of reasonable diligence ought to have been aware of it, and this would be so although he was not directly commanded to do it, but did it of his own motion, or “ voluntarily.”

Exceptions overruled.